A TREATISE 
 
 ON 
 
 CRIMES AND MISDEMEANORS. 
 
 BY 
 
 SIR WM. OLD^ALL RUSSELL, KNT. 
 
 LATE CHIEF JUSTICE OF BENGAL. 
 
 IN THREE VOLUMES. 
 Vol. I. 
 
 c&tXt}) IMtotu 
 
 By HORACE SMITH, 
 
 BENCHER OF THE INNER TEMPLE, METROPOLITAN MAGISTRATE, EDITOR OF 
 
 "ADDISON ON CONTRACTS," "ADDISON ON TORTS," " ROSCOk's 
 
 CRIMINAL EVIDENCE," ETC. 
 
 AND 
 
 A. P. PERCEVAL KEEP, M.A., 
 
 OF THE MIDLAND CIRCUIT, BARRISTER AT LAW. 
 
 LONDON: 
 
 STEVENS AND SONS, Limited, 119 & 120, CHANCERY LANK; 
 SWEET AND MAXWELL, Limited, 3, CHANCERY LAM.: 
 
 BOSTON, U.S.A.: LITTLE, BROWN, AND COMPANY. 
 
 ILato Jpubltsijrrs anU iSoofescIlrrs. 
 1896.
 
 Copyright, 1896. 
 By Stevens and Sons, Limited, 
 
 AND 
 
 Sweet and Maxwell, Limited. 
 
 T 
 R9l97c 
 
 1996 
 
 University Press: 
 John Wilson and Son, Cambridge, U.S.A.
 
 PREFACE TO THE SIXTH EDITION. 
 
 The last Edition of this work was published in the year 
 1877. Since that time a very considerable change has 
 taken place both in the laws themselves and in their ad- 
 ministration. The number of new statutes and new cases 
 which have been incorporated in the text must have materi- 
 ally increased the bulk of the volumes, had not an endeavour 
 been made to expunge superfluous matter and to abbreviate 
 occasionally where such a course seemed possible. In fur- 
 therance of this end, also, a large number of decisions on 
 repealed statutes which seemed still to be of value to the 
 practitioner have been relegated to appendices in Volumes 
 II. and III., and printed in smaller type. In the result, it 
 will be found that the present work is only a few pages 
 longer than the last Edition. 
 
 The merits of the work as a whole are so well-known 
 and appreciated that any radical attempt to alter its design 
 and scope would only produce disappointment ; yet the 
 Editors have found that some slight change in the disposi- 
 tion of the subjects of the various Books had become advis- 
 able in consequence of an alteration in the position of tin- 
 chapters in the last Edition for which no sufficient reason 
 seemed to be assigned. 
 
 The chapters are now arranged according to their sub- 
 ject-matter, and not according to the exigencies of sym- 
 metry in the size of each volume ; although, as a matter 
 of fact, it will be found that the three volumes of the 
 
 66733l|
 
 iv Preface to the Sixth Edition. 
 
 present Edition are not inconveniently different in size. 
 The chapters relating- to Perjury, Conspiracy, Libel, and 
 Bigamy have therefore been placed among the offences 
 affecting the Government, the Public Peace, and the Public 
 Rights, and will be found in Vol. I. ; while the law relating 
 to offences against the Person will be found together with 
 the chapter on Threats and Threatening- Letters in Vol. III. 
 The law relating to offences against Property will be found 
 as before in Vol. II. 
 
 The Penal Servitude Act of 1891, which provides that, in 
 every case where a sentence of Penal Servitude may be im- 
 posed, a term of not less than three years, or in lieu thereof, 
 imprisonment for not more than two years, may be given, 
 and which repeals sec. 2 of 27 .& 28 Vict. c. 47, has enabled 
 the Legislature to repeal so much of the provisions in the 
 Consolidation Acts as relate to these limitations. This repeal 
 has been effected by Statute Law Revision Acts passed, for 
 the most part, while this work has been in the press. The 
 words in the Consolidation Acts have therefore been re- 
 tained in the text with a note calling attention to the fact 
 that they have been repealed, but that the punishment 
 remains in effect the same. The power to inflict the punish- 
 ment of Solitary Confinement has also been repealed by the 
 same Acts, that mode of punishment having for some years 
 passed fallen into disuse. 
 
 A new departure has been taken in the introduction of 
 notes affording (it is hoped) some guide to the sources from 
 which information may be obtained as to the state of the 
 law in America upon the particular subject treated of in 
 the text. It cannot be doubted that, while the American 
 lawyers and legislators have in the main derived their laws 
 from English sources, yet English lawyers have constantly 
 found that they may learn much from the expansion or 
 moderation (as well as from the interpretation) of the law 
 by the American Courts and Legislatures. The difficulties, 
 however, which an Englishman has to encounter in dealing
 
 Preface to the Sixth Edition. v 
 
 with American statutes or cases are very great. The mere 
 mass and number of them in the different States is enor- 
 mous, and the conflict of statutes and decisions is very per- 
 plexing. Moreover, in dealing with the judgments of the 
 American Courts, an English lawyer is under a great disad- 
 vantage, because it is almost impossible for him to ascertain 
 and weigh accurately the authority of the decision which he 
 is reading. The Editors have therefore thought that it 
 would be impossible in a work like ' Russell on Crimes ' to 
 do more than indicate the sources from which interesting 
 light may be obtained by the inquirer upon any topic under 
 discussion ; and to this end they have availed themselves in 
 a large degree of Mr. Bishop's most ingenious and lucid 
 book on the Criminal Law. 1 The American reader of 
 ' Russell on Crimes ' will doubtless not be content to rely 
 upon the notes without referring to Mr. Bishop's book ; and 
 the Editors wish to warn their English readers that where 
 that book is cited they should refer to the passage in Mr. 
 Bishop's book, as well as to the cases in the note, before 
 adopting any decided opinion upon the American Law. 
 The high estimate which has been formed in America (as 
 well as in England) of Mr. Bishop's book has made it an 
 authority upon American Law ; but resort must be had 
 to the book itself before the reader of the notes to this 
 Edition of ' Russell on Crimes ' can be assured that he has 
 apprehended Mr. Bishop's view upon the point in question. 
 All that the Editors have attempted to do is to indicate 
 some of the sources of information from which an American 
 or English reader may derive assistance upon points where 
 the English and American Law appear to be in any degree 
 at variance. To have attempted more than this — to have 
 incorporated the American Law with the text, or even to 
 have discussed the American Law in detail in the notes — 
 would have produced nothing but confusion, unless the 
 
 1 New Commentaries on the Criminal Law, by J. P. Bishop, Sth Ed. : Chicago, 
 T. H. Flood & Co.. 1892.
 
 vi Preface to the Sixth Edition. 
 
 whole scheme and character of the work were to be entirely 
 altered. 
 
 The statutes and cases have been brought up to the end 
 of the year 1895 ; and every care has been taken to make 
 the Indexes as convenient and exhaustive as possible. 
 
 H. S. 
 
 A. P. P. K. 
 Temple, January, 1896.
 
 PREFACE TO THE FOURTH EDITION. 
 
 EDITED BY C. S. GREAVES, ESQ., Q. C. 
 
 In preparing this Edition for the press, the system adopted by the 
 Author has been followed as nearly as could be; and the statutes and 
 cases have been introduced in a manner similar to that which the 
 Author himself pursued in preparing the Second Edition ; but although 
 the Editor has used his best endeavours to keep the work within 
 as narrow limits as were consistent with giving a full and correct 
 statement of the statutes and cases, which the twenty-two years 
 since the last Edition have produced, yet the number of those stat- 
 utes and cases is so great as to render a third volume unavoidable. 
 This the Editor extremely regrets, but he felt himself bound to 
 adhere to the plan of the Author, and the more especially as that 
 plan affords to the reader the fullest and most useful view of the 
 enactments and decisions. 
 
 Great difficulty has been experienced in many instances in giving 
 a faithful representation of the decisions. The marginal notes have 
 been so rarely found to be warranted by the cases themselves, that 
 they have generally been omitted ; and the Editor has endeavoured, so 
 far as the reports enabled him, to give such a statement of the facts, 
 the decision, and the grounds of it wherever they appeared, as to enable 
 the reader to understand what the decision, as reported, really is ; 
 but many cases are so loosely and inaccurately reported that this has 
 been no easy task, and very probably the Editor has not always suc- 
 ceeded in his attempt. Nor can it be doubted that, in some instances, 
 the reports themselves neither fully nor faithfully represent the facts 
 or the decision. 
 
 As the work is confined to indictable offences, and does not treat of 
 criminal procedure, the statutes relating to the summary conviction 
 of offenders have not been introduced.
 
 viii Preface to the Fourth Edition. 
 
 At the beginning of the First Volume a chapter has been intro- 
 duced which contains certain general provisions applicable to many 
 of the offences treated of in the work. This has been done in order 
 to facilitate the reference to these provisions wherever it may be 
 necessary. 
 
 The cases marked ' MSS. C. S. Gr.' are from the Editor's collection. 
 
 The Editor would be doing great injustice to himself if he were not 
 to express the very deep sense he entertains of the great honour 
 which was done to him by the very nattering manner in which 
 his labours in the last Edition were appreciated, not only in Her 
 Majesty's dominions, but also in the United States. He has endeav- 
 oured in this Edition to shew the sense he feels of the honour done to 
 him by rendering it as complete and perfect as he was able. 
 
 It has been also a matter of great gratification that during the time 
 this work has been passing through the press, the Editor has been 
 able to lend his humble assistance towards the completion of the new 
 Code of Criminal Law for the State of New York ; for which he has 
 received as flattering an acknowledgment as possible from the Com- 
 missioners, who have shewn so much ability in the preparation of 
 that great work. The Editor cannot but express the hope that such 
 mutual interchanges of goodwill in the endeavour to ameliorate the 
 law, may exert, a strong tendency to promote those feelings of amity 
 which ought ever to subsist between the kindred nations of Great 
 Britain and the United States ; nor can he help thinking that they 
 who, amid the din of arms, where generally the laws stand in abey- 
 ance, have sedulously devoted themselves to the amendment of their 
 laws, must be deeply impressed with the truth contained in the 
 beautiful lines, — 
 
 ' Pax optima rerum 
 Quas homini novisse datum est ; pax una triumphis 
 Innumeris potior.'
 
 EXTRACT FROM THE 
 PREFACE TO THE SECOND EDITION. 
 
 ' The crime of high treason was not originally included in the plan 
 
 of this work, on account of the great additional space which the 
 
 proper discussion of that important subject would have occupied ; 
 
 and because prosecutions for that crime — happily not frequent — 
 
 are always so conducted as to give sufficient time to consult the 
 
 highest authorities.' These reasons, which were given in the Preface 
 
 to the First Edition, have still been allowed to operate ; and the crime 
 
 of high treason is not, therefore, one of the subjects discussed in the 
 
 following pages. The law upon all other indictable offences will, it is 
 
 hoped, be there found in an appropriate arrangement ; and a chapter 
 
 or book upon the Law of Evidence in criminal prosecutions, which 
 
 formed a part of the original plan of the work, has now been 
 
 supplied by the kind assistance of my friend, Mr. E. Vaughan 
 
 Williams, whose professional attainments abundantly assure the 
 
 value of the addition. 
 
 WM. OLDNALL RUSSELL. 
 
 Lincoln's Inn, May, 1826.
 
 TABLE OF CONTENTS 
 
 OF 
 
 THE FIRST VOLUME. 
 
 BOOK I. 
 
 OF PERSONS CAPABLE OF COMMITTING CRIMES, OF PRINCIPALS AND 
 ACCESSORIES, AND OF INDICTABLE OFFENCES. 
 
 Chapter 
 
 Page 
 
 I. General Provisions ]_ 
 
 (1) Eules for Interpretation of Criminal Statutes ... 1 
 
 (2) Vexatious Indictments Acts 2 
 
 (3) Offences committed near Boundaries of Counties and on 
 
 a Voyage or Journey 4 
 
 (4) Trial of Offences committed at Sea 9 
 
 (5) Description of Documents and Money and Venue in 
 
 Indictments 25 
 
 (6) Stating Names of Partners and Ownership of Property 
 
 in Indictment 26 
 
 (7) Defects in Indictments — Informal Conclusions — 
 
 Taking Objections 36 
 
 (8) Pleas in Abatement 33 
 
 (9) Pleas of Autrefois Acquit and Autrefois Convict . . 38 
 
 (10) Amendment of Indictment at Trial 53 
 
 (11) On trial for Misdemeanor, no Acquittal if Offence a 
 
 Pelony 62 
 
 (12) Attempts to commit Felonies or Misdemeanors ... 62 
 
 (13) Judgment on Record of Queen's Bench during Sittings 
 
 or Assizes 63 
 
 (14) Judgment of Death 64 
 
 (15) Punishment for Offences for which no Special Punish- 
 
 ment provided Qq 
 
 (16) Previous Convictions QQ 
 
 (17) Penal Servitude 73 
 
 (18) Juvenile Offenders 81 
 
 (19) Hard Labour and Whipping Si 
 
 (20) Sentence when Person in Prison for another Crime . 85
 
 xii Table of Contents of the First Volume. 
 
 Chapteb Page 
 
 (21) Binding over to come up for Judgment when called 
 
 upon 85 
 
 (22) Restitution of Stolen Property 80 
 
 (23) Costs of Prosecutions — Ordering Rewards .... 90 
 
 (24) Forfeiture for Felony 108 
 
 II. Of Persons capable of committing Crimes 113 
 
 (1) Infants 113 
 
 (2) Persons non compos mentis 118 
 
 (3) Persons subject to power of others 145 
 
 (4) Ignorant persons 160 
 
 III. Of Principals and Accessories 101 
 
 (1) Principals in First Degree 161 
 
 (2) " " Second Degree 161 
 
 (3) Accessories before the Fact 170 
 
 (4) " after the Fact 176 
 
 (5) Proceedings 180 
 
 IV. Of Indictable Offences 192 
 
 BOOK II. 
 
 OF OFFENCES PRINCIPALLY AFFECTING THE GOVERNMENT, 
 THE PUBLIC PEACE, OR THE PUBLIC RIGHTS. 
 
 I. Of Counterfeiting or impairing Coin — Of importing into 
 the Kingdom Counterfeit or Light Money — and 
 
 of exporting Counterfeit Money 207 
 
 (1) Counterfeiting Coin 207 
 
 (2) Impairing and Defacing Coin 220 
 
 (3) Importing Counterfeit Money 222 
 
 (4) Exporting Counterfeit Money 223 
 
 II. Of Frauds relating to Bullion, and of Counterfeiting Bullion 225 
 
 III. Of the making, mending, or having in possession, any 
 
 Instruments for Coining 226 
 
 IV. Of uttering, tendering, &c, Counterfeit Coin 233 
 
 (1) Uttering Counterfeit Coin of the Realm .... 234 
 
 (2) Uttering Foreign Counterfeit Coin 245 
 
 V. Of buying, selling, receiving, or paying for Counterfeit 
 
 Coin at a lower rate than its denomination imports . . 247 
 
 VI. Of serving or procuring others to serve Foreign States . 249 
 
 VII. Of seducing Soldiers and Sailors to Desert or Mutiny . . 258 
 
 VIII. Of Piracy 260 
 
 (1) Piracy at Common Law and by Statute .... 260 
 
 (2) The Court by which the Offence of Piracy may be 
 
 tried 268
 
 Table of Contents of the First Volume. xiii 
 
 Chapter Page 
 Of neglecting Quarantine, and of spreading Contagious 
 
 Disorders, and of Injury to the Public Health . 269 
 
 (1) Neglecting Quarantine 269 
 
 (2) Spreading Contagion and injuring Public Health 272 
 Of Offences against the Revenue Laws relating to 
 
 the Customs or Excise 277 
 
 Of hindering the Exportation of Corn, or preventing 
 
 its Circulation within the Kingdom 291 
 
 Of Perjury and Subornation of Perjury 293 
 
 Of administering or taking Unlawful Oaths . . . 404 
 
 Of Misprision of Felony, and of compounding Offences 411 
 
 Of Offences by Persons in Office 416 
 
 Of buying and selling Offices 433 
 
 Of Bribery and Offences at Parliamentary and Muni- 
 cipal Elections 443 
 
 Of neglecting or delaying to deliver Election Writs . 462 
 
 Of dealing in Slaves 464 
 
 Of Forestalling, Regrating, and Ingrossing, and of 
 
 Monopolies 475 
 
 Of Maintenance and Champerty, and of buying and 
 
 selling Pretended Titles 47 1 
 
 Of Embracery, and dissuading a Witness from giving 
 
 Evidence 486 
 
 Of Barratry, and of suing in the Name of a Fictitious 
 
 Plaintiff 489 
 
 Of Conspiracy .491 
 
 Of Riots, Routs, and Unlawful Assemblies .... 553 
 
 Of Affrays 587 
 
 Of Challenging to Fight 593 
 
 Of Libel and Indictable Slander 595 
 
 (1) Definition 595 
 
 (2) Privileged Communications 598 
 
 (3) Publications against the Christian Religion . 613 
 
 (4) Publications against Morality 617 
 
 (5) Libels against the Constitution 618 
 
 (6) Libels against the King 619 
 
 (7) Libels against the Houses of Parliament . . 621 
 
 (8) Libels upon the Government 621 
 
 (9) Libels upon Magistrates and the Administra- 
 tion of Justice 624 
 
 (10) Libels upon Private Individuals 626 
 
 (11) Libels upon Foreigners of Distinction . . . 629 
 
 (12) Indictment 630 
 
 (13) Evidence — Pleas — Trial — Lord Campbell's 
 Act 632 
 
 XXIX. Of Disturbances in Places of Public Worship . . . 652 
 
 IX. 
 
 X. 
 XL 
 
 XII. 
 XIII. 
 
 XIV. 
 
 XV. 
 
 XVI. 
 XVII. 
 
 XVIII. 
 
 XIX. 
 
 XX. 
 
 XXI. 
 
 XXII. 
 
 XXIII. 
 
 XXIV. 
 
 XXV. 
 
 XXVI. 
 
 XXVII. 
 
 XXVIII.
 
 XIV 
 
 Table of Contents of the First Volume. 
 
 Chapter 
 
 XXX. 
 XXXI. 
 
 X XXII. 
 
 XXXIII. 
 
 XXXIV. 
 
 XXXV. 
 XXXVI. 
 
 XXXVII. 
 
 XXXVIII. 
 
 XXXIX. 
 XL. 
 
 Page 
 
 Of Bigamy 659 
 
 Of Forcible Entry aud Detainer 717 
 
 Of Nuisances 731 
 
 (1) Public Nuisances in General 732 
 
 (2) Nuisances to Public Highways 760 
 
 (a) "What is a Public Highway .... 760 
 
 (b) Nuisances to a Highway by Obstructions 785 
 
 (c) Nuisances to a Highway by Neglect to 
 
 Repair 793 
 
 (d) The Highway Acts 827 
 
 (3) Nuisances to Public Rivers 842 
 
 (4) Nuisances to Public Bridges 852 
 
 Of obstructing Process, and of Disobedience to Orders 
 
 of Magistrates 880 
 
 (1) Obstructing Process 880 
 
 (2) Disobedience to Orders of Magistrates . . . 883 
 Of Escapes 889 
 
 (1) Escapes suffered by Officers 890 
 
 (2) Escapes suffered by Private Persons .... 898 
 Of Prison-breaking by the Party confined .... 899 
 Of Rescue; and of actively aiding in an Escape, or in 
 
 an Attempt to Escape 904 
 
 Of returning, or being at large, after Sentence of Trans- 
 portation ; and of Rescuing or aiding the Escape of 
 
 a Person under such Sentence 914 
 
 Of Gaming 929 
 
 (1) Gaming 929 
 
 (2) Inciting Infants to bet or borrow ..... 931 
 
 Of Offences relating to Dead Bodies 934 
 
 Of going armed in the Night-time for the Destruction 
 
 of Game and of assaulting Gamekeepers .... 944 
 
 Appendix: Decisions on Repealed Statutes Relating to Conspiracy 965 
 
 Addenda „ 975 
 
 Ixdex 979
 
 TABLE 
 
 PRINCIPAL STATUTES CITED 
 
 THE FIRST VOLUME. 
 
 
 
 
 PAGE 
 
 
 
 
 
 PAGE 
 
 3 Ed. I. c. 3 (Westm. 
 
 1) 
 
 896 
 
 12 Hen 
 
 VIII. c. 10 
 
 
 
 944 
 
 " 
 
 c. 9 
 
 
 411 
 
 
 c. 7 
 
 
 
 118 
 
 " 
 
 c. 25 
 
 
 482 
 
 21 
 
 c. 11 
 
 
 
 87 
 
 " 
 
 c. 29 
 
 
 497 
 
 
 c. 13 
 
 
 
 202 
 
 " 
 
 c. 34 
 
 
 624 
 
 22 
 
 c. 5, s. 1, et seq. 
 
 
 852, 860, 
 
 13 '' 
 
 c. 49 (Westm. 
 
 2) 
 
 483 
 
 
 
 
 
 et seq. 
 
 28 " 
 
 c. 11 
 
 
 483 
 
 
 s. 3 
 
 
 870 
 
 871, 872 
 
 31 " 
 
 c. 14 
 
 
 896 
 
 23 
 
 " c. 1, s. 3 
 
 
 
 171 
 
 33 " 
 
 St. 2 
 
 St. 3, c. 20 
 
 
 494, 525 
 225 
 
 28 
 
 " c. 15 
 
 
 261, 
 
 264, 266, 
 
 267 
 
 
 
 
 
 
 ss. 1, 
 
 2 
 
 9, 10, 
 
 1 Ed. II. 
 
 
 899, 906 
 
 
 
 
 
 21 
 
 
 
 
 
 
 s. 3 
 
 
 
 263 
 
 1 Ed. III. st. 2, c. 11 
 
 
 497 
 
 32 
 
 c. 9 
 
 
 
 485 
 
 2 " 
 
 c. 3 
 
 
 588, 589 
 
 33 
 
 c. 9, s. 11 
 
 
 
 742, 929 
 
 5 
 
 c. 8 
 
 
 892 
 
 
 
 
 
 
 " 
 
 c. 10 
 
 
 486, 487 
 
 1 Ed. VI. 
 
 
 
 613 
 
 13 " 
 
 c. 30 
 
 
 334 
 
 " 
 
 c. 12, s 13 
 
 
 
 171 
 
 14 " 
 
 c. 10 
 
 
 418 
 
 5&6 " 
 
 c. 4 
 
 
 
 652 
 
 18 
 
 c. 1 
 
 
 569 
 
 
 s. 2 
 
 
 
 652 
 
 25 " 
 
 c. 2 
 
 
 212 
 
 " 
 
 c. 16, s. 1, et seq. 
 
 434 
 
 437, 438 
 
 (i 
 
 st. 5. c 
 c. 4 
 
 .2 
 
 222 
 
 851 
 
 
 c. 25 
 
 
 
 740 
 
 34 " 
 
 c. 1 
 
 
 490, 583 
 
 1 Mary 
 
 sess. 2, c. 3 
 
 
 
 613, 653 
 
 " 
 
 c. 8 
 
 
 486 
 
 1 & 2 Phil. & Mary, c. 13 
 
 
 
 642, 893 
 
 45 
 
 c. 2 
 
 
 851 
 
 2 &3 
 
 c. 10 
 
 
 
 642 
 
 
 
 
 
 4 &5 
 
 c. 8, 
 
 ss. 3 
 
 4 
 
 508 
 
 1 Rich 
 
 . II. c. 4 
 
 
 485 
 
 
 
 
 
 
 5 " 
 
 c. 8 
 
 
 718 
 
 1 Eliz. 
 
 c. 2 
 
 
 
 613, 654 
 
 12 " 
 
 c. 2 
 
 
 434 
 
 " 
 
 c. 17 
 
 
 
 847 
 
 15 " 
 
 c. 2 
 
 718, 
 
 719, 721, 728 
 
 5 " 
 
 c. 4, s. 31 
 
 
 
 200 
 
 
 c. 3 
 
 
 10 
 
 " 
 
 c. 9 
 
 s. 3 
 
 320, 
 
 328 
 
 343, 367 
 320, 328 
 
 1 Hen 
 
 IV. c. 12 
 
 
 851 
 
 
 ss. 4, 6, 7 
 
 
 
 321, 344 
 
 8 
 
 c. 4 
 
 
 119 
 
 
 ss. 8, 9, 11, 
 
 13 
 
 
 322 
 
 13 
 
 c. 7, s. 1 
 
 
 569, 583 
 
 8 " 
 
 c. 2, s. 4 
 C. 4 
 
 
 
 414, 490 
 43 
 
 2 Hen 
 
 V. c. 8 
 
 
 569, 583 
 
 18 " 
 27 " 
 
 c. 5 s. 4 
 c. 10 
 
 
 
 415 
 414 
 
 8 Hen. 
 
 VI. c. 9 719,721, 
 
 725, 726, 727 
 
 29 " 
 
 c. 5, s. 2 
 
 
 
 320 
 
 33 
 
 c. 26 
 
 
 760 
 
 31 
 
 c. 5, s. 4 
 
 
 
 42^ 
 
 35 
 
 c. 11 & 12 
 
 
 118 
 
 « 
 
 c. 11 
 
 c. 12, s. 5 
 
 
 719 
 
 725, 729 
 171 
 
 17 Ed. IV. 
 
 
 222 
 
 39 " 
 
 c. 9, s. 2 
 
 
 
 171 
 
 
 
 
 
 43 
 
 c. 2 
 
 
 
 938 
 
 3 Hen. 
 
 VII. c. 2 
 
 
 508 
 
 " 
 
 e. 2, s. 7 
 
 
 
 884
 
 XVI 
 
 Table of the Principal Statutes 
 
 
 
 
 PAGE 
 
 
 
 
 
 
 PAGE 
 
 1 James I. c. 11 
 
 
 
 662 
 
 6 Geo 
 
 II. 
 
 c. 26 
 
 
 
 208 
 
 2 " c. 31, s. 7 
 
 
 
 272 
 
 9 
 
 
 c. 11 
 
 
 
 704 
 
 21 " c. 15 
 
 
 720, 
 
 726, 727 
 
 ' 
 
 
 c. 23 
 
 
 
 152 
 
 " c. 28, s. 8 
 
 
 
 320 
 
 
 
 C. 35, s. 10 
 s. 26 
 
 
 
 289 
 290 
 
 13 Char. II. st. 1, c. 5, ss. 
 
 2,3 
 
 
 581 
 
 11 
 
 
 C. 19, s. 16 
 
 
 
 887 
 
 13 & 14 Char. II. c. 11, s. 
 
 6 
 
 
 202 
 
 
 ' 
 
 c. 22, ss. 1, 4- 
 
 ■8,23 
 
 
 291 
 
 " C. 12 
 
 
 
 884 
 
 12 
 
 ' 
 
 c. 29, s. 1 
 
 
 869, 
 
 871, 872 
 
 " c. 31 
 
 
 
 222 
 
 14 ' 
 
 i 
 
 c. 33 
 
 
 
 862 
 
 14 " c. 14 
 
 
 
 420 
 
 16 
 
 
 c. 15 
 
 
 
 928 
 
 1.-, " c. 17 
 
 
 
 868 
 
 
 
 c. 31 
 
 
 
 908, 912 
 
 22 " c. 5 
 
 
 
 914 
 
 
 
 ss. 2, 3, 
 
 4 
 
 
 909, 910 
 
 29 " c. 3, s. 
 
 17 
 
 
 150 
 
 17 
 
 18 
 
 
 c. 38 
 c. 30 
 
 
 
 419 
 
 261, 266 
 
 1 Wm. & Mary, c. 18, s. 
 
 18 
 
 654, 
 
 656, 657 
 
 19 
 
 
 c. 13 
 
 
 
 664, 701 
 
 " st. 2, c. 
 
 2 
 
 
 581 
 
 
 
 s. 3 
 
 
 
 267 
 
 " c. 
 
 11 
 
 
 222 
 
 
 
 c. 34 
 
 
 
 289, 290 
 
 2 " c. 5, s. 4 
 
 
 883 
 
 
 
 s. 11 
 
 
 
 440 
 
 3 & 4 " c. 9 
 
 
 
 171 
 
 21 
 
 t 
 
 c. 3 
 
 
 
 490 
 
 4 & 5 " c. 18, s. 
 
 2 
 
 
 651 
 
 22 
 
 
 c. 46, s. 36 
 
 
 
 323 
 
 5 " c. 11 
 
 108, 
 
 651, 
 
 819, 824, 
 
 23 
 
 
 C. 11 
 
 
 331 
 
 345, 350 
 
 
 
 
 878 
 
 25 
 
 ' 
 
 c. 36, ss. 3, 4 
 
 8 
 
 
 742, 744 
 
 c. 11, s. 
 
 3 
 
 
 759, 825 
 
 
 
 s. 5 
 
 
 
 747 
 
 s. 
 
 6 
 
 
 819 
 
 
 
 s. 10 
 
 
 
 744 
 
 8 & 9 " c. 27 
 
 
 
 881 
 
 
 tt 
 
 c. 37, s. 9 
 
 
 
 907 
 
 
 
 
 
 26 
 
 " 
 
 c. 33 
 
 666, 
 
 668, 
 
 688, 689, 
 
 1 Wm. III. c. 18, s. 17 
 
 
 
 613 
 
 
 
 
 692 
 
 695 
 
 696, 698 
 
 6 & 7 " c. 17, s. 8 
 
 
 
 221 
 
 
 
 s. 8 
 
 
 
 689 
 
 7 & 8 " c. 34 
 
 
 
 323 
 
 
 
 ss. 10-12 
 
 
 666, 668 
 
 8 & 9 " c. 11, s. 6 
 
 
 
 297 
 
 27 
 
 
 c. 3 
 
 
 
 90 
 
 " c. 26 
 
 
 
 229, 230 
 
 28 
 
 tt 
 
 c. 19 
 
 
 
 742 
 
 s. 4 
 
 
 
 213, 214 
 
 31 
 
 " 
 
 c. 10, s. 24 
 
 
 
 383 
 
 s. 6 
 
 
 
 239, 248 
 
 
 
 
 
 
 
 9 c. 2 
 
 
 
 208 
 
 6 Gee 
 
 . III. c. 7i 
 
 
 
 806 
 
 9 & 10 " C. 32 
 
 
 
 201, 614 
 
 8 
 
 " 
 
 c. 15 
 
 
 
 927 
 
 10 & 11 " c. 17 
 
 
 
 754 
 
 10 
 
 " 
 
 c. 16, s. 11 
 
 
 
 336 
 
 U & 12 " c. 7 
 
 
 261 
 
 266, 267 
 
 12 
 
 tt 
 
 c. 71 
 
 
 
 475 
 
 s. 8 
 
 
 
 260 
 
 
 " 
 
 c. 68 
 
 
 
 761 
 
 s. 9 
 
 
 
 264, 265 
 
 13 
 
 " 
 
 c. 63, s. 40 
 
 
 
 427 
 
 s. 10 
 
 
 
 267 
 
 
 " 
 
 c. 78 
 
 
 
 862, 873 
 
 " c. 12 
 
 
 
 24 
 
 
 
 s. 16 
 
 
 
 776 
 
 ss. 13 
 
 , 15 
 
 
 24 
 
 
 
 s. 24 
 
 s. 47 
 
 
 
 775, 819 
 721 
 
 1 Anne, st. 1, c. 13 
 
 
 
 871, 877 
 
 
 
 ss. 48 
 
 65 
 
 
 825 
 
 " st. 1, c. 18 
 
 
 
 860, 869 
 
 
 
 s. 64 
 
 
 
 824, 878 
 
 s. 4 
 
 
 
 878 
 
 17 
 
 « 
 
 c. 56 
 
 
 
 391 
 
 s. 5 
 
 
 
 869, 877 
 
 18 
 
 tt 
 
 c. 19 
 
 
 
 90 
 
 " st. 2, c. 9, 
 
 
 
 171 
 
 19 
 
 « 
 
 C. 74 
 
 
 
 928 
 
 6 " c. 7 
 
 
 
 619 
 
 21 
 
 tt 
 
 c. 53 
 
 
 
 695, 698 
 
 12 " c. 7 
 
 
 
 118, 119 
 
 24 
 
 tt 
 
 c. 25 
 
 c. 56, s. 5 
 
 
 
 421 
 924 
 
 1 Geo. I. st. 2, c. 5, ss 
 
 1, 2 
 
 ,3, 5 
 
 ,8 571, 
 573, 584 
 
 26 
 27 
 
 « 
 
 c. 71 
 
 c. 15, s. 5 
 
 
 
 733 
 565, 655 
 
 6 " c. 23 
 
 
 
 924 
 
 29 
 
 tt 
 
 c. 50, s. 10 
 
 
 
 63& 
 
 8 " c. 6, s. 2 
 
 
 
 323 
 
 31 
 
 u 
 
 c. 32, s. 10 
 
 
 
 657 
 
 " c. 24, ss. 1, 
 
 2 
 
 
 262, 268 
 
 32 
 
 tt 
 
 c. 21, s. 12 
 
 
 
 701 
 
 s. 3 
 
 
 
 268 
 
 
 tt 
 
 c. 25, s. 12 
 
 
 
 262 
 
 9 " c. 28 
 
 
 
 881 
 
 
 tt 
 
 c. 60 
 
 
 
 646 
 
 11 " c. 4, s. 6 
 
 
 
 420 
 
 33 
 
 tt 
 
 C. 52, s. 62 
 
 
 
 426 
 
 " c. 22 
 
 
 
 881 
 
 
 tt 
 
 c. 54 
 
 
 
 885, 888 
 
 c. 22 
 
 
 
 881 
 
 
 
 s. 66 
 
 
 
 436 
 
 12 " C. 29 
 
 
 
 490 
 
 
 «c 
 
 c. 67 
 
 
 
 568 
 
 c. 38, s. 15 
 
 
 
 794 
 
 34 
 
 " 
 
 c. 64. s. 1 
 
 
 
 798 
 
 s. 17 
 
 
 
 794 
 
 35 
 36 
 
 ft 
 
 c. 57, s. 1 
 c. 8 
 
 
 
 716 
 580 
 
 2 Geo. IL c. 24 
 
 
 
 444, 456 
 
 
 " 
 
 c. 9 
 
 
 
 291 
 
 s. 7 
 
 
 
 455 
 
 
 
 ss. 3, 
 
 4, 5 
 
 
 292 
 
 c. 25 
 
 
 
 396 
 
 37 
 
 « 
 
 c. 70 
 
 
 
 258 
 
 s. 2 
 
 
 
 323, 397 
 
 
 " 
 
 c. 123 
 
 
 404, 4 
 
 5 " c. 7 
 
 
 
 327 
 
 
 
 s. 2 
 
 
 
 406
 
 Cited in the First Volume. 
 
 XYll 
 
 
 
 
 
 PAGE 
 
 
 
 
 
 PAGE 
 
 37 Gee 
 
 C. 123, s. 4 
 
 
 407 
 
 57 Geo. ] 
 
 c. 54 
 
 
 887 
 
 
 
 ss. 5, 
 
 6 
 
 406, 408 
 
 
 a 
 
 C. 90 
 
 
 944 
 
 
 " 
 
 c. 126, s. 2 
 
 
 210 
 
 58 
 
 " 
 
 c. 70 
 
 
 90, 744 
 
 
 
 s. 3 
 
 
 223 
 
 
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 c. 93 
 
 
 929 
 
 
 
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 245 
 
 59 
 
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 222 
 
 
 
 s. 7 
 
 
 220 
 
 
 
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 221 
 
 
 u 
 
 c. 137 
 
 
 405 
 
 
 " 
 
 C. 134 
 
 
 697 
 
 38 
 
 tt 
 
 c. 52, ss. 2, 
 s. 9 
 s. 10 
 
 c. 78 
 
 3, 8 
 
 96 
 
 97 
 
 97 
 
 637, 638, 639 
 
 60 
 
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 c. 1 
 c. 4 
 
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 7 
 
 647 
 
 97 
 
 39 
 
 it 
 
 c. 37, s. 1 
 
 
 12, 13, 15, 263 
 
 
 
 
 
 
 
 " 
 
 c. 79 
 
 
 409, 574 
 
 1 Geo. ] 
 
 c. 1 
 
 
 576, 577 
 
 39&40" 
 
 c. 94, ss. 1, 
 
 2 
 
 140, 141 
 
 
 tt 
 
 c. 8, s. 4 
 
 
 647 
 
 40 
 
 " 
 
 c. 96, s. 5 
 
 
 655 
 
 
 " 
 
 c. 14, ss. 1, 3 
 
 
 97 
 
 41 
 
 it 
 
 c. 19 
 
 
 569 
 
 
 " 
 
 c. 90 
 
 
 263 
 
 
 it 
 
 c. 109 
 
 
 781, 782, 783 
 
 1 &2 
 
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 c. 41 
 
 
 759 
 
 
 
 s. 8 
 
 
 781 
 
 
 
 ss. 2, 3 
 
 
 760 
 
 42 
 
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 c. 56 
 
 
 414 
 
 
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 905 
 
 
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 c. 119 
 
 
 24 
 742, 754 
 
 3 
 
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 ss. 2-7 
 
 
 667, 668 
 667 
 
 43 
 
 tl 
 
 c. 29 
 
 
 353 
 
 
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 c. 114 
 
 81, 
 
 322, 397, 
 
 
 " 
 
 c. 59 
 
 853 
 
 865, 866, 878 
 
 
 
 586, 
 
 742 
 
 746, 747 
 
 
 
 s. 2 
 
 
 862, 870, 871 
 
 
 tt 
 
 c. 126 
 
 
 803, 945 
 
 
 
 s. 4 
 
 
 872 
 
 
 
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 722 
 
 
 
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 855, 865, 867 
 
 
 
 s. 60 
 
 
 29 
 
 44 
 
 tl 
 
 c. 77 
 c. 85 
 
 
 695, 696 
 439 
 
 
 
 s. 106 
 s. 107 
 
 
 803 
 
 862 
 
 
 tt 
 
 c. 139, ss. 3 
 
 s. 7 
 
 ,37 
 
 210 
 220 
 
 4 
 
 It 
 
 c. 5 
 c. 17 
 
 
 668 
 668 
 
 46 
 
 " 
 
 C. 54 
 
 
 13 
 
 
 tt 
 
 c. 34, s. 2 
 
 
 306, 968 
 
 48 
 
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 c. 75 
 c. 127 
 
 
 941 
 695, 698 
 
 
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 C. 48 
 
 ss. 2, 3 
 
 
 64, 262 
 65 
 
 49 
 
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 867 
 
 
 
 s. 7 
 
 
 64 
 
 
 " 
 
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 444 
 
 
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 908, 911 
 
 
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 c. 125 
 
 
 885 
 
 
 
 s. 43 
 
 
 911 
 
 
 tt 
 
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 s. 3 
 
 s. 4 
 
 
 435, 436, 438 
 
 436, 439 
 
 437, 439 
 
 
 
 c. 76 
 
 s. 2 
 ss. 3-8 
 
 
 681, 698 
 668 
 669 
 
 
 
 ss. 5, 
 
 6 
 
 438 
 
 
 
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 670 
 
 51 
 
 it 
 
 c. 30 
 
 c. 65 
 c. 100 
 
 
 781 
 
 638 
 
 97 
 
 
 
 s. 14 
 
 ss. 15-17 
 
 s. 16 
 
 
 671 
 
 672, 692 
 
 296 
 
 
 
 s. 2 
 
 
 97 
 
 
 
 ss. 18-23 
 
 673 
 
 689, 692 
 
 52 
 
 (I 
 
 c. 104 
 
 405 
 
 407, 410, 578 
 
 
 
 s. 26 
 
 
 673 
 
 
 
 ss. 7, 
 
 8 
 
 408 
 
 
 
 ss. 28, 30, 31 
 
 ,33 
 
 674, 713 
 
 
 " 
 
 c. 110 
 
 
 871 
 
 
 ft 
 
 c. 91 
 
 
 710 
 
 
 it 
 
 c. 143, s. 11 
 
 
 287 
 
 
 tt 
 
 c. 95 
 
 
 804 
 
 
 " 
 
 c. 155 
 
 
 656, 657 
 
 
 
 s. 50 
 
 
 426 
 
 
 " 
 
 c. 156 
 
 
 907 
 
 5 
 
 " 
 
 c. 32 
 
 
 671 
 
 
 
 ss. 2 
 
 3 
 
 908 
 
 
 tt 
 
 c. 64 
 
 
 919 
 
 53 
 
 " 
 
 c. 89 
 
 
 462 
 
 
 tt 
 
 c. 68 
 
 
 712 
 
 
 
 ss. 2- 
 
 5 
 
 463 
 
 
 tt 
 
 c. 83, s. 4 
 
 
 199, 754 
 
 
 it 
 
 c. 92 
 
 
 857, 866 
 
 
 
 s. 10 
 
 
 84 
 
 
 " 
 
 c. 160 
 
 
 614 
 
 
 a 
 
 c. 84 912, 
 
 914, 
 
 915, 917 
 
 
 " 
 
 c. 162 
 
 
 81 
 
 
 
 919, 
 
 920, 
 
 921, 922, 
 
 54 
 
 it 
 a 
 
 c. 15 
 c. 90 
 
 c. 160 
 
 
 328 
 
 862 
 782 
 
 
 
 ss. 3-8, 10 
 ss. 11, 12 
 
 
 923, 924 
 915 
 916 
 
 55 
 
 a 
 
 c. 68, s. 2 
 
 
 776, 779 
 
 
 
 ss. 13, 15 
 
 
 917 
 
 
 tt 
 
 c. 137, s. 1 
 
 
 28 
 
 
 
 ss. 16-22 
 
 918 
 
 921, 925 
 
 
 " 
 
 c. 143 
 
 
 871, 872 
 
 
 
 ss. 23, 24 
 
 
 919, 929 
 
 56 
 
 " 
 
 c. 27 
 
 
 397 
 
 
 " 
 
 c. 85 
 
 
 909 
 
 
 
 ss. 3, 
 
 8 
 
 890 
 
 
 
 S. 4 
 
 
 748 
 
 
 " 
 
 c. 104, s. 8 
 
 
 288 
 
 
 
 ss. 9, 27 
 
 
 908 
 
 
 tt 
 
 c. 128, s. 2 
 c. 138 
 
 
 66 
 414, 543, 586 
 
 
 u 
 
 c. 95 
 c. 113 
 
 
 544 
 4£4 
 
 57 
 
 VOL. I. 
 
 c. 19 
 
 s. 25 
 c. 51 
 
 — b 
 
 
 575, 576, 577 
 408 
 712 
 
 6 
 
 " 
 
 c. 16, s. 18 
 c. 25, s. 4 
 c. 50, s. 61 
 
 
 382, 527 
 43 
 
 487
 
 XV 111 
 
 Table of the Principal Statutes 
 
 
 
 
 
 I'AGK 
 
 
 
 PAGE 
 
 6 Geo. IV 
 
 . c. 69, s. 1 
 
 
 
 917 
 
 9 Geo. 
 
 IV. c. 54, s. 24 
 
 183 
 
 u 
 
 c. 78 
 
 
 
 269, 272 
 
 
 s. 25 
 
 182 
 
 
 s. 17 
 
 
 
 269 
 
 
 s. 28 
 
 26 
 
 
 ss. 21, 
 
 36 
 
 
 270 
 
 
 c. 55, s. 50 
 
 87, 89 
 
 « 
 
 c. 92 
 
 
 
 696, 697, 698 
 
 
 s. 74 
 
 15 
 
 
 s. 3 
 
 
 
 690 
 
 n 
 
 c. 56, ss. 9, 33 
 
 '< 
 
 c. 94 
 
 
 
 87 
 
 
 s. 55 
 
 15 
 
 " 
 
 c. 108, s. 40 
 
 
 
 283 
 
 
 c. 61, s. 26 
 
 422 
 
 " 
 
 s. 52 
 
 
 
 281 
 
 
 c. 69 
 
 60, 290, 509, 944, 
 
 << 
 
 c. 129 
 
 
 
 544, 551 
 
 
 
 947, 951 
 
 
 s. 34 
 
 
 
 287 
 
 
 s. 2 
 
 945, 947, 951, 953 
 
 7 " 
 
 c. 38 
 
 
 
 17 
 
 
 ss. 3-8 
 
 946, 951, 955 
 
 « 
 
 C. 46 
 
 
 
 29, 30, 31, 32 
 
 
 s. 9 
 
 946, 955, 958 
 
 
 s. 9 
 
 
 
 30 
 
 
 
 959 
 
 " 
 
 c. 57, *. 10 
 
 
 
 380 
 
 
 ss. 12, 
 
 13 947 
 
 
 s. 70, 
 
 71 
 
 
 398 
 
 ' 
 
 c. 74, s. 125 
 
 82 
 
 u 
 
 c. 64 
 
 
 
 91, 98-100 
 
 ' 
 
 c. 83, s. 9 
 
 915 
 
 
 s. 8 
 
 
 
 105 
 
 ' 
 
 c. 92, s. 8 
 
 34, 35 
 
 
 s. 9 
 
 1", 
 
 18 
 
 , 23, 180, 183, 
 185, 186 
 
 10 
 
 c. 34, ss. 33, 
 
 s. 41 
 
 34 94, 655 
 15 
 
 
 s. 10 
 
 
 
 183 
 
 ' 
 
 c. 56 
 
 33, 34 
 
 
 s. 11 
 
 
 
 182 
 
 
 ss. 13, 
 
 21 33 
 
 
 s. 12 
 
 
 
 47, 99, 104 
 
 11 
 
 c. 39 
 
 915 
 
 
 s. 13 
 
 
 
 5 
 
 ' 
 
 c. 66 
 
 65 
 
 
 s. 14 
 
 
 
 26, 30, 34 
 
 ' 
 
 c. 70, s. 9 
 
 63 
 
 
 s. 15 
 
 
 
 27 
 
 ' 
 
 c. 73, s. 1 
 
 647 
 
 
 s. 16 
 
 
 
 28 
 
 
 
 
 
 ss. 17, 
 
 18 
 
 
 29 
 
 1 Wm 
 
 IV. c. 32 
 
 306 
 
 
 s. 19 
 
 
 
 38 
 
 
 s. 30 
 
 310 
 
 
 s. 20 
 
 
 
 37 
 
 
 c. 65, s. 28 
 
 29 
 
 
 s. 21 
 
 
 
 38, 427 
 
 
 c. 66, s. 28 
 
 29 
 
 
 ss. 22 
 
 23 
 
 
 90,91, 98,99, 
 
 
 " c. 70, s. 9 
 
 63 
 
 
 
 
 
 100, 101, 103 
 
 1 &2 
 
 " c. 32, s. 30 
 
 954, 959 
 
 
 ss. 24 
 
 25 
 
 2' 
 
 r 91 
 
 
 s. 31 
 
 949, 952, 954 
 
 
 s. 26 
 
 
 
 91, 107, 885 
 
 
 " c. 38 
 
 697 
 
 
 s. 28 
 
 
 
 104, 105 
 
 
 " c. 60, s. 11 
 
 420 
 
 
 s. 29, 
 
 30 
 
 
 105 
 
 2 
 
 " c. 34, s. 1 
 
 82, 207,212, 236 
 
 
 s. 33 
 
 
 
 642 
 
 
 s. 3 
 
 209, 217 
 
 &8 " 
 
 C. 27 
 
 
 82 
 
 118,291, 292 
 
 
 s. 4 
 
 214 
 
 " 
 
 c. 28, s. 2 
 
 
 
 139, 236 
 
 
 s. 5 
 
 221 
 
 
 s. 4 
 
 
 
 41 
 
 
 s. 6 
 
 222, 247 
 
 
 ss. 6, 
 
 7 
 
 
 65, 263 
 
 
 s. 7 
 
 234, 235,240, 241 
 
 
 s. 8 
 
 
 
 65, 70 
 
 
 s. 8 
 
 235, 242 
 
 
 ss. 8, 
 
 ) 
 
 66, 
 
 
 s. 10 
 
 226, 231, 239 
 
 
 
 
 
 920, Add. 
 
 
 s. 11 
 
 227 
 
 
 s. 10 
 
 
 
 85 
 
 
 s. 12 
 
 211, 227, 24S 
 
 
 s. 11 
 
 
 
 67, 69, 70, 71 
 
 
 s. 14 
 
 220 
 
 
 s. 12 
 
 
 
 15, 263 
 
 
 s. 15 
 
 216 
 
 u 
 
 c. 29, s. 2 
 
 
 
 891 
 
 
 s. 17 
 
 217 
 
 " 
 
 c. 30, s. 8 
 
 
 
 566, 568 
 
 
 s. 18 
 
 215 
 
 
 s. 30 
 
 
 
 301 
 
 
 s. 21 
 
 209 
 
 " 
 
 c. 74 
 
 
 
 469 
 
 
 " c. 45, s. 50. 
 
 52 366 
 
 9 
 
 c. 14, s. 16 
 
 
 
 508 
 
 
 s. 58 
 
 398, 399 
 
 " 
 
 c. 15 
 
 53, 
 
 36, 
 
 334, 340, 640 
 
 2 & 3 
 
 " c. 59, s. 19 
 
 65 
 
 " 
 
 C. 26 
 
 
 
 59 
 
 
 " c. 64 
 
 5, 8, 861 
 
 " 
 
 c. 29, s. 57 
 
 
 
 87, 88, 89 
 
 
 " c. 68 
 
 949 
 
 « 
 
 s. 77 
 
 
 
 15 
 
 
 " c. 75 
 
 938, 941 
 
 « 
 
 c. 30, s. 26 
 
 
 
 184 
 
 
 " c. 75, ss. 2-5, 6-9 939 
 
 
 s. 43 
 
 
 
 15 
 
 
 ss. 10- 
 
 -15, 18 940 
 
 a 
 
 c. 31, s. 1 
 
 8 
 
 2, 
 
 118, 261, 291, 
 292, 652, 655 
 
 3 & 4 
 
 " C. 36, s. 2 
 " C. 44 
 
 470 
 65 
 
 
 s. 13 
 
 
 
 185 
 
 
 " c. 45, s. 58 
 
 457 
 
 
 s. 16 
 
 
 
 117 
 
 
 " c. 49, s. 1 
 
 323 
 
 it 
 
 s. 27 
 
 
 
 51 
 
 
 " C. 51 
 
 65 
 
 
 s. 32 
 
 
 
 15 
 
 
 " c. 53, s. 44 
 
 281 
 
 tt 
 
 c 32, s. 3 
 
 
 
 111, 323 
 
 
 " c. 73, s. 12 
 
 464, 470, 471 
 
 " 
 
 C. .">•"., s. 1 
 
 
 
 82 
 
 
 " C. 83 
 
 323 
 
 " 
 
 c. 54, s. 8 
 
 
 
 236 
 
 
 " C. 103 
 
 701 
 
 
 S. 21 
 
 
 
 67. 69 
 
 
 " C. 114 
 
 657 
 
 
 s. 23 
 
 
 
 180. 183 
 
 
 " C. 123 
 
 65
 
 Cited in the First Volume. 
 
 xix 
 
 PAGE 
 
 3 & 4 Wm. IV. c. 125, s. 64 65 
 
 4 & 5 " c. 36, s. 7 263 
 
 s. 12 95 
 
 s. 16 744 
 
 s. 22 16 
 
 " c. 40 33 
 " c. 67 918, 919 
 
 " c. 75 95 
 
 " c. 94, ss. 41, 42 421 
 
 5 & 6 " c. 33 719 
 
 " c. 41 929 
 
 " C. 45 65 
 
 s. 12 65 
 
 6 & 7 
 
 c. 50 
 
 S. 4 
 s. 5 
 s. 21 
 s. 23 
 s. 58 
 s. 59 
 
 862, 873, 878 
 
 832, 862 
 
 826 
 
 870 
 
 783, 795 
 
 797, 798 
 
 797 
 
 ss. 60, 61 798 
 
 ss. 64,65, 69 786 
 
 S. 67 805 
 
 s. 72 770, 786 
 
 s. 75 883 
 
 ss. 80, 82, 84 775 
 
 s. 85 775, 780 
 
 s. 86 777 
 
 ss. 87, 88, 89 778 
 
 SS. 90, 91 779 
 
 ss. 92, 93 780 
 
 S. 94 807, 829 
 
 s. 95, 808, 822, 823, 
 
 829 
 
 s. 96 821 
 
 s. 98 822, 824 
 
 s. 99 807 
 
 ss. Ill, 113 825 
 
 C. 51, s. 5 65 
 
 C. 52, s. 2 664 
 
 c. 54, s. 1 665 
 
 c. 62 325, 409 
 
 ss. 2-6 325 
 
 ss. 7-12 326, 402 
 
 s. 13 297, 327, 401, 
 
 409 
 
 ss. 14, 15 327 
 
 ss. 16-17, 19,21 328 
 
 s. 18 390, 402 
 
 c. 69, s. 7 27 
 
 c. 76 5, 460 
 
 s. 7 861 
 
 s. 24 97 
 
 s. 34 400 
 
 s. 47 418 
 
 s. 77 460 
 
 s. 109 97 
 
 s. 113 91 
 
 C 65, s. 9 305, 306 
 
 c 66 754 
 
 c 76 637, 639 
 
 s. 6 640 
 
 C. 85 324, 681, 682, 693, 
 
 694, 698 
 
 ss. 1,2 674 
 
 ss. 3, 4 675, 691 
 
 ss. 5, 8-11, 13 676 
 
 ss. 14, 15, 16, 18 
 
 677 
 ss. 1 9-23, 26 678 
 
 PAGE 
 
 6 & 7 Wm. IV. c. 85, ss. 27, 28, 30, 
 
 31, 32-34, 36, 
 
 37, 39 679 
 
 S. 39 695 
 
 s. 42 679, 691 
 
 ss. 44, 45 680 
 
 " c. 86, s, 1 669, 694 
 
 ss. 30,31 669, 713 
 
 S. 38 714 
 
 " c. 87 860 
 
 " c. 89, ss. 1-5 101 
 
 " c. Ill 68, 69, 72 
 
 7 Wm. IV. & 1 Vict. c. 23 414 
 
 " " c. 36, s. 35 191 
 
 " " c. 53, s. 7 860 
 
 " " c. 84, s. 3 82 
 
 " " c. 85, s. 11 45 
 
 1 Vict. c. 22 
 
 1 &2 
 
 2 & 3 
 
 3 &4 
 
 s. 3 
 
 s. 10 
 
 ss. 23, 33, 34 
 
 s. 35 
 
 s. 36 
 
 C. 23 
 
 c. 36, s. 35 
 
 s. 40 
 c. 84, ss. 1, 2 
 C. 85, s. 2 
 
 s. 11 
 c. 88, ss. 1, 2 
 
 s. 3 
 
 s. 4 
 
 s. 5 
 
 s. 7 
 c. 90, s. 5 
 c. 91, ss. 1,2 
 
 681, 682, 694 
 
 324 
 
 675 
 
 680 
 
 681 
 
 674 
 
 66, 321 
 
 191 
 
 36 
 
 65 
 
 60 
 
 51 
 
 261, 262 
 
 262, 263 
 152, 263,267 
 
 152, 263 
 
 262 
 
 66, 70, 83, 270, 920, Add. 
 
 4 & 5 
 5& 6 
 
 c. 38 
 c. 77 
 c. 82 
 
 ss. 3, 13 
 
 ss. 12, 14 
 c. 96 
 c. 105 
 c. 107 
 c. 110, s. 8 
 c. 12, ss. 2, 3, 4 
 c. 47 
 
 ss. 46, 47 
 
 s. 48 
 
 s. 65 
 c. 71, s. 29 
 c. 82, ss. 1, 2, 3 
 c. 93 
 c. 9 
 
 ss. 2-4 
 c. 54 
 c. 60 
 c. 72 
 
 s. 1 
 
 ss. 2, 5 
 c. 88, s. 2 
 c. 9'2 
 c. 97 
 
 c. 110, s. 8 
 c. Ill, s. 2 
 c. 49 
 c. 29 
 
 258,406,407,465, 
 573, 907, Add. 
 
 748 
 
 323 
 
 903, 912 
 920 
 903 
 31, 32 
 324 
 697 
 
 299, 349 
 
 638 
 
 581 
 
 742 
 
 741 
 
 591 
 
 86 
 
 7,92 
 
 8 
 
 605 
 
 606 
 
 103 
 
 697 
 
 324 
 
 681, 682 
 
 681 
 
 8 
 
 694, 714 
 
 200 
 
 35 
 
 31, 32 
 
 872 
 
 903
 
 XX 
 
 Table of the Principal Statutes 
 
 
 
 
 
 PAGE 
 
 
 
 
 
 PAGB 
 
 5 & 6 Vict. 
 
 C 29, S. 14 
 
 
 920 
 
 9 & 10 Vict 
 
 c. 26 
 
 
 916, 917 
 
 
 
 s. 16 
 
 
 920 
 
 
 tt 
 
 c. 48 
 
 
 754 
 
 
 
 ss. 23, 28 
 
 903 
 
 
 tt 
 
 C. 59 
 
 251, 
 
 613, 657 
 
 
 (< 
 
 c. 38 
 
 
 322, 367, 651 
 
 
 " 
 
 c. 72 
 
 
 701 
 
 
 tt 
 
 c. 39 
 
 c. 57, s. 16 
 c. 85 
 
 
 87, 88 
 28 
 31 
 
 
 tt 
 
 tt 
 
 c. 95 
 
 s. Ill 
 c. 119 
 
 
 337, 380 
 386 
 694 
 
 
 " 
 
 c. 98, ss. 18, 
 
 19,20 
 
 10 & 11 
 
 tt 
 
 c. 58 
 
 
 675 
 
 
 « 
 
 c. 110, s. 2 
 
 
 911 
 
 
 tt 
 
 c. 62 
 
 
 912 
 
 
 tt 
 
 c. 113, s. 1 
 
 
 702 
 
 
 tt 
 
 c. 67, ss. 1, 2 
 
 
 916, 917 
 
 
 it 
 
 C. 116 
 
 
 299, 352 
 
 
 tt 
 
 c. 102 
 
 
 352 
 
 
 tt 
 
 C. 122 
 
 
 299 
 
 
 
 s. 6 
 
 
 353 
 
 
 
 s. 67 
 
 
 300 
 
 11 & 12 
 
 tt 
 
 c. 12, s. 2 
 
 
 530 
 
 6& 7 
 
 M 
 
 c. 12 
 
 
 8 
 
 
 it 
 
 c 42, s. 1 
 
 
 910 
 
 
 tt 
 
 c. 18, ss. 48, 
 
 49 
 
 448 
 
 
 
 ss. 2, 17, 20 
 
 24 
 
 
 
 ss. 85, 
 
 89 
 
 459 
 
 
 
 s. 8 
 
 
 303 
 
 
 « 
 
 c. 30 
 
 
 883 
 
 
 
 ss. 12, 13, 
 
 14, 16 
 
 
 « 
 
 c. 37, s. 15 
 
 
 697 
 
 
 
 s. 17 
 
 302, 
 
 303, 305, 
 
 
 " 
 
 c. 39 
 
 
 702 
 
 
 
 
 
 642 
 
 
 « 
 
 c. 73, s. 2 
 
 
 199 
 
 
 
 s. 23 
 
 
 910 
 
 
 
 ss. 37, 
 
 48 
 
 345 
 
 
 
 s. 34 
 
 
 17 
 
 
 tt 
 
 c. 80, s. 1 
 
 
 398 
 
 
 ft 
 
 C. 43 
 
 
 304, 305 
 
 
 « 
 
 c. 83, s. 1 
 
 
 300 
 
 
 
 s. 16 
 
 
 303, 737 
 
 
 <( 
 
 c. 85 
 
 
 376, 727 
 
 
 
 s. 36 
 
 
 949 
 
 
 (( 
 
 c. 96 
 
 s. 3 
 
 
 597, 647 
 647 
 
 
 ft 
 
 c. 46, s. 1 147 
 
 170, 
 181 
 
 173, 180, 
 
 187, 188 
 
 
 
 ss. 4, 5 
 
 
 648, Add. 
 
 
 
 s. 2 
 
 182 
 
 183, 186 
 
 
 
 s. 6 
 
 
 609, 648 
 
 
 
 s. 3 
 
 
 187 
 
 
 
 s. 7 
 
 
 637, 649 
 
 
 
 s. 4 
 
 
 54, 56 
 
 
 
 ss. 8, 9 
 
 
 649, 651 
 
 
 
 s. 7 
 
 
 181 
 
 
 « 
 
 c. 98 
 
 
 470, 471 
 
 
 tt 
 
 c. 58 
 
 
 712 
 
 
 
 ss. 2, 4 
 
 -6 
 
 471 
 
 
 tt 
 
 c. 63, s. 70 
 
 
 796 
 
 7 &8 
 
 M 
 
 c. 2, s. 1 15,17, 
 
 21,23,91,185 
 
 
 " 
 
 c. 78, s. 5 
 
 
 912 
 
 
 
 s. 2 
 
 
 17 
 
 12 & 13 
 
 <( 
 
 c. 11, s. 3 
 
 
 68 
 
 
 
 ss. 3, 4 
 
 • 
 
 17 
 
 
 
 s. 4 
 
 
 69 
 
 
 
 s. 10 
 
 
 185 
 
 
 <( 
 
 C. 45, s. 10 
 
 
 54, 56 
 
 
 « 
 
 c. 24 
 
 
 275, 475 
 
 
 
 s. 18 
 
 
 759 
 
 
 
 s. 4 
 
 
 476 
 
 
 (( 
 
 C. 68 
 
 
 710 
 
 
 « 
 
 C. 29 
 
 
 947 
 
 
 tt 
 
 c. 69, s. 31 
 
 
 17 
 
 
 (1 
 
 C. 56, s. 3 
 
 
 697 
 
 
 tt 
 
 c. 76 
 
 
 94 
 
 
 It 
 
 c. 60 
 
 
 581 
 
 
 it 
 
 c. 92, s. 5 
 
 
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 56, 57, 58, 59, 
 
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 604, 794 
 
 
 
 
 
 951
 
 XXII 
 
 Table of the Principal Statutes 
 
 
 
 
 
 PAGE 
 
 
 
 
 PAGE 
 
 24 & 
 
 25 Vict. c. 96, s. 31 
 
 
 
 47 
 
 24 &25 
 
 Vict. C. 99, ss. 40 
 
 83, 
 
 318, 320, Add. 
 
 
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 67 
 
 
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 93, 318 
 
 
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 199 
 
 
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 207 
 
 
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 51 
 
 
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 302, 304 
 
 
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 70, 199 
 
 
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 65 
 
 
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 51 
 
 
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 543 
 
 
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 42, 51, 62 
 
 
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 276 
 
 
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 204, 276 
 
 
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 714 
 
 
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 13, 15 
 
 
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 186, 492 
 
 
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 68, 
 
 71, 72, 79 
 
 
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 170 
 
 
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 84 
 
 
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 85, 
 
 182, 184, 191, 
 
 
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 83 
 
 
 
 
 664 
 
 
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 83, Add. 
 
 
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 15 
 
 
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 93 
 
 
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 12 
 
 
 565, 658 
 
 
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 199 
 
 
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 84 
 
 
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 548 
 
 
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 301 
 
 
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 92, 94 
 
 
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 15 
 
 
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 907 
 
 
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 84 
 
 
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 440 
 
 
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 83 
 
 25 &26 
 
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 776 
 
 
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 83, Add. 
 
 
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 776 
 
 802, 827, 832 
 
 
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 93 
 
 
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 42 
 
 8.31 
 
 
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 43 
 
 
 25 
 
 
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 832 
 
 
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 84, 19 
 
 
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 16 
 
 827 
 
 
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 15 
 
 
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 827, 829 
 
 
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 84 
 
 
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 807, 827, 829 
 
 
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 83 
 
 
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 808, 828, 829 
 
 
 s. 53 
 
 
 
 83, Add. 
 
 
 ss. 34 
 
 35 
 
 798, 829 
 
 
 s. 54 
 
 
 
 93 
 
 
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 796, 830 
 
 
 " c. 99, s. 1 
 
 
 
 207 
 
 
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 830 
 
 
 ss. 2, 3 
 
 
 
 209 
 
 
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 45 
 
 831 
 
 
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 220 
 
 
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 775, 831 
 
 
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 7 
 
 221 
 
 
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 802, 831 
 
 
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 222 247 
 
 
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 222 
 
 
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 223 
 
 
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 948 
 
 
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 234 
 
 26&27 
 
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 216 
 
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 38, 
 
 448, 452, 459 
 
 
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 198, 234 
 
 
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 454 
 
 
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 235 
 
 
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 84 
 
 
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 246 
 
 
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 238 
 
 
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 210 
 
 
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 275 
 
 
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 223 
 
 
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 322, 742, 896 
 
 
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 21 
 
 
 245 
 
 27 & 28 
 
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 210 
 
 
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 142 
 
 
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 211, 245 
 
 
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 I 
 
 67, 74 
 
 
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 226, 227 
 
 
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 5, 6, 
 
 7 75, 76, 77 
 
 
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 227 
 
 
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 78 
 
 
 ss. 26, 
 
 27 
 
 
 219 
 
 
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 10 
 
 75 
 
 
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 216 
 
 
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 32, 
 
 33,41 
 
 
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 2, 3 
 
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 213, 217 
 
 
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 832 
 
 
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 85 
 
 191, 215 
 
 
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 775, 776, 833 
 
 
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 15,216 
 
 
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 24 
 
 829, 830 
 
 
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 71, 
 
 235, 237, 
 
 
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 833 
 
 
 
 
 
 245 
 
 
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 775, 833, 834 
 
 
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 84. 317 
 
 28 & 29 
 
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 711 
 
 
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 83. 318 
 
 
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 Cited in the First Volume. 
 
 xxm 
 
 28 &: 
 
 29 & 
 
 30 & 
 
 31 & 
 
 32 & 
 
 33 
 
 33 & 
 
 34 & 
 
 
 
 
 PAGE 
 
 
 
 
 
 
 PAGE 
 
 29 Vict. c. 79, s. 9 
 
 
 
 94 
 
 34 & 35 Vict 
 
 . c. 49, s. 7 
 
 
 
 73 
 
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 892, 909 
 
 
 
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 26, 
 
 27 
 
 703 
 
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 83 
 
 
 
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 69, 70, 76 
 
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 90 
 
 
 
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 70 
 
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 269 
 
 
 
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 270, 271 
 
 
 
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 190, 740 
 
 " c. 109, ss. 19 
 
 -24 
 
 
 259 
 
 
 
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 79 
 
 
 
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 20 
 
 
 69 
 
 31 " c. 2 
 
 
 
 712 
 
 
 
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 75 
 
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 142 
 
 
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 57-4 
 
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 108, 367, Add. 
 
 35 &36 
 
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 c. 10, s. 1 
 
 
 
 675 
 
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 2 
 
 
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 398, 457 
 
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 449 
 
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 89 
 
 
 
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 460 
 
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 24, 
 
 291, 323, 
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 274 
 
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 274 
 
 
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 272 
 
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 711 
 
 
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 429 
 
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 448 
 
 
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 87, 89 
 
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 445, 449 
 
 
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 c. 97 
 
 
 
 436, 438 
 
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 19, Add. 
 
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 701 
 
 32 " c. 46 
 
 
 
 5 
 
 36 &37 
 
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 747, 754 
 
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 449 
 
 
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 464, 468 
 
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 737 
 
 
 
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 464 
 
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 710, 712 
 
 
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 323, 
 
 463, 576, 
 
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 886 
 
 
 
 577, 
 
 668, 
 
 712, 914, 
 
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 155 
 
 
 
 
 
 
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 454 
 
 37 
 
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 747 
 
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 37 &38 
 
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 262 
 
 263 
 
 272, 324 
 
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 679, 754 
 
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 574, 
 
 580, 
 
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 c. 42, s. 9 
 
 
 
 35 
 
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 298 
 
 
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 92 
 
 401 
 
 675, 923 
 
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 2 
 
 
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 c. 89. s. 52 
 
 
 
 272 
 
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 107 
 
 
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 701 
 
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 208 
 
 38 
 
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 438 
 
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 220 
 
 
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 737 
 
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 219 
 
 
 
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 78, 
 
 87, 
 
 89, 
 
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 208 
 
 
 
 90, 
 
 91 
 
 
 737 
 
 34 " c. 11, s. 11 
 
 
 
 710 
 
 
 
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 1)6, 
 
 102, 
 
 103 738 
 
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 2 
 
 
 108 
 
 38 & 39 
 
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 544 
 
 s. 3 
 
 
 90 
 
 108, 109 
 
 
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 c. 35, s. 263 
 
 
 
 298 
 
 s. 4 
 
 
 
 90 
 
 
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 c. 55 
 
 
 269 
 
 272, 731 
 
 ss. 4, 
 
 9 
 
 
 110 
 
 
 
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 274 
 
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 17, 
 
 18, 
 
 
 
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 732 
 
 21, 
 
 27 
 
 
 111 
 
 
 
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 731 
 
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 111 
 
 
 
 ss. 116-119 
 
 274, 275 
 
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 251 
 
 252, 253 
 
 
 
 s. 144 
 
 
 
 834, 842 
 
 s. 5 
 
 
 
 252 
 
 
 
 s. 146 
 
 
 
 834 
 
 s. 6 
 
 
 
 249, 252 
 
 
 
 s. 147 
 
 
 
 834 
 
 s. 7 
 
 
 
 252 
 
 
 
 ss. 148, 149 
 
 835, 842 
 
 s. 8 
 
 
 
 251, 252 
 
 
 
 s. 152 
 
 
 
 836 
 
 ss. 9- 
 
 10 
 
 
 253 
 
 
 
 s. 341 
 
 
 
 292, 731 
 
 ss. 11- 
 
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 254 
 
 
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 C. 60 
 
 
 32 
 
 595, 885 
 
 ss. 19- 
 
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 255 
 
 
 
 s. 16, 
 
 31lb- 
 
 s. 5 
 
 32 
 
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 255 
 
 
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 c. 63 
 
 
 
 274 
 
 s. 31 
 
 
 
 249 
 
 
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 c. 66 
 
 
 
 697 
 
 ss. 32- 
 
 -33 
 
 
 256 
 
 
 " 
 
 c. 86, s. 3 
 
 
 
 492, 545 
 
 c.110, s. 38 
 
 
 
 702 
 
 
 
 s. 11 
 
 
 
 528 
 
 s. 39 
 
 I-) 
 
 
 701, 703 
 
 
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 C 89, s. 44 
 
 
 
 298 
 
 35 " c. 31, ss. 2, , 
 
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 6, 9 
 
 544 
 
 
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 c. 92, s. 26 
 
 
 
 298 
 
 s. 8 
 
 
 
 35 
 
 39 &40 
 
 " 
 
 c. 20, s. 5 
 
 
 
 190 
 
 ss. 18, 
 
 23 
 
 
 545 
 
 
 " 
 
 c. 22 
 
 
 
 544 
 
 " c. 32 
 
 
 544 
 
 549, 551 
 
 
 
 s. 2 
 
 
 
 544 
 
 " c. 48 
 
 
 
 656 
 
 
 
 s. 3 
 
 
 
 36 
 
 " C. 49 
 
 
 675 
 
 701, 702 
 
 
 
 SS. 9, 
 
 L2 
 
 
 36 
 
 s. 3 
 
 
 
 75 
 
 
 
 s. 16 
 
 
 
 545 
 
 s 5 
 
 
 
 76 
 
 
 " 
 
 c. 32, s. 6 
 
 
 
 576
 
 XXIV 
 
 Table of the Principal Statutes 
 
 
 
 
 
 
 PAGE 
 
 
 
 
 
 PAOE 
 
 39 & 40 Vict 
 
 c. 36, s. 29 
 
 
 
 36 
 
 46 & 47 Vict 
 
 c. 51, ss. 4, 6, 7- 
 
 12, 2 
 
 2_ 
 
 
 
 s. 36 
 
 
 
 298 
 
 
 
 35, 36-40 
 
 450 
 
 
 
 s. 168 
 
 
 
 277 
 
 
 
 s. 33 
 
 
 324, 450 
 
 
 
 ss. 181 
 
 -2, 184 
 
 -5 
 
 278 
 
 
 
 s. 41 
 
 
 461 
 
 
 
 ss. 186 
 
 -7 
 
 
 279 
 
 
 
 ss. 42, 43, 
 
 45 
 
 451, 461 
 
 
 
 ss. 189- 
 
 -90 
 
 
 280 
 
 
 
 ss. 46, 50, 
 
 51 
 
 451 
 
 
 
 ss. 191-3 
 
 281 
 
 288 
 
 
 
 s. 50 
 
 
 96 
 
 
 
 ss. 198- 
 
 -202 
 
 
 282 
 
 
 
 ss. 52, 53 
 
 
 452 
 
 
 
 ss. 203 
 
 -5 
 
 
 283 
 
 
 
 s. 53 
 
 
 38 
 
 
 
 ss. 206 
 
 -9 
 
 
 284 
 
 
 
 ss. 55, 59 
 
 453, 454, 461 
 
 
 
 ss. 229 
 
 237, 255-8 
 
 285 
 
 
 
 S. 57 
 
 
 95 
 
 
 
 ss. 259 
 
 -63 
 
 
 286 
 
 
 
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 454, 461 
 
 
 
 s. 284 
 
 
 
 287 
 
 
 
 s. 64 
 
 
 454 
 
 40 &41 
 
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 c. 21 
 
 
 
 83 
 
 
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 c. 61, s. 13 
 
 
 298 
 
 
 
 ss. 40, 
 
 41 
 
 83 
 
 623 
 
 47 &48 
 
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 c. 39 
 
 
 924 
 
 41 &42 
 
 « 
 
 c. 20, s. 10 
 c. 73, ss. 2, 3 
 
 ss. 4, 5 
 
 6,7 
 
 
 280 
 13 
 
 14 
 
 
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 s. 3 
 c. 43 
 
 s. 46 
 
 
 924 
 946 
 422 
 
 
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 c. 77 
 
 s. 5 
 ss. 6, 7 
 
 
 827 
 
 836 
 836 
 837 
 
 
 « 
 
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 c. 54, s. 47 
 c. 64, ss. 2-4 
 
 s. 15 
 
 
 298 
 142 
 142 
 
 
 « 
 
 c. 77, s. 10 
 
 
 809 
 
 837 
 
 
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 c. 70, ss. 2,4-8, 
 
 9-18 
 
 ,26, 
 
 
 
 ss. 13, 
 
 14 
 
 
 838 
 
 
 
 28, 30 
 
 , 35, 
 
 36, 
 
 
 
 s. 15 
 
 
 
 838 
 
 
 
 45, 46, 
 
 50-57 
 
 
 
 ss. 16, 
 
 17, 19, 
 
 20 
 
 839 
 
 48 &49 
 
 " 
 
 c. 23 
 
 
 5 
 
 
 
 ss. 21, 
 
 22 
 
 
 865 
 
 
 " 
 
 c. 54, s. 7 
 
 
 298 
 
 
 
 ss. 23, 
 
 24 
 
 
 840 
 
 
 tt 
 
 c. 69, s. 4 
 
 84 
 
 113, 324 
 
 
 
 ss. 26, 
 
 35,38 
 
 
 841 
 
 
 
 s. 9 
 
 
 117 
 
 42&43 
 
 ' 
 
 c. 18, s. 6 
 
 s. 7 
 
 
 
 743 
 754 
 
 
 
 s. 17 
 s. 18 
 
 
 3 
 95 
 
 
 a 
 
 c. 22 
 
 
 
 453 
 
 49 
 
 << 
 
 c. 14 
 
 
 678, 687 
 
 
 
 s. 7 
 
 
 4 
 
 107 
 
 50 & 51 
 
 " 
 
 c. 25, s. 1 
 
 
 85 
 
 
 (C 
 
 c. 29, s. 2 
 
 
 
 704 
 
 
 << 
 
 c. 28, s. 8 
 
 
 298 
 
 
 « 
 
 c. 49, ss. 10, 
 
 11 
 
 84, Ad 
 
 
 
 s. 13 
 
 
 3 
 
 
 
 s. 17 
 
 
 
 275 
 
 
 
 s. 14 
 
 
 95 
 
 
 
 s. 27 
 
 
 
 45 
 
 
 a 
 
 c. 55, ss. 2, 3, 4 
 
 
 86 
 
 
 
 s. 44 
 
 
 
 86 
 
 
 
 s. 19 
 
 
 434 
 
 
 << 
 
 c. 55, s. 1 
 
 
 75, ; 
 
 
 
 s. 27 
 
 
 434 
 
 
 
 s. 2 
 
 
 
 78 
 
 
 
 s. 29 
 
 
 423, 434 
 
 
 « 
 
 c. 55, ss. 5, 8 
 
 
 
 76 
 
 
 it 
 
 c. 71, s. 8 
 
 
 416, 419 
 
 43 &44 
 
 " 
 
 c. 16, s. 5 
 
 
 
 207 
 
 
 
 s. 14 
 
 
 298 
 
 
 « 
 
 c. 20, s. 20 
 c. 41 
 
 s. 2 
 
 
 655 
 
 207 
 937 
 938 
 
 51 &52 
 
 u 
 
 c. 41, s. 11 
 
 s. 57 
 
 ss. 79, 97 
 
 
 826, 838 
 461 
 826 
 
 
 
 s. 7 
 
 
 
 943 
 
 
 a 
 
 c. 43, ss. 15, 50, 
 
 51 
 
 416 
 
 
 
 s. 8 
 
 
 
 655 
 
 
 ti 
 
 c. 46 
 
 
 324 
 
 
 « 
 
 c. 47 
 
 
 
 948 
 
 
 " 
 
 c. 57 
 
 
 945 
 
 44&45 
 
 « 
 
 c. 40, s. 2 
 c. 58, s. 58 
 s. 153 
 c. 60, s. 1 
 
 s. 6 
 
 
 
 449 
 924 
 259 
 603 
 2 
 
 52 
 
 « 
 
 c. 64, s. 3 
 
 ss. 4, 7, 8 
 
 s. 9 
 c. 10, s. 7 
 
 s. 9 
 
 
 602, 637 
 603 
 604 
 298 
 299 
 
 45 &46 
 
 (( 
 
 c. 48, s. 17 
 c. 49, s. 25 
 
 
 
 259 
 259 
 
 52 &53 
 
 it 
 
 c. 52 
 
 ss. 2-5 
 
 
 430 
 431 
 
 
 
 c. 50 
 
 5, 
 
 9, 93, 
 421 
 
 418, 
 460 
 
 
 <« 
 
 ss. 6-9 
 c. 63, ss. 2, 3 
 
 
 432 
 1 
 
 
 
 s. 169 
 
 
 
 97 
 
 
 it 
 
 c. 69, ss. 1, 7 
 
 
 440 
 
 
 cc 
 
 c. 55, s. 9 
 
 
 
 23 
 
 
 
 ss. 2, 3 
 
 
 441 
 
 
 u 
 
 C. 75, s. 12 
 
 
 36, 
 
 154, 
 158 
 
 
 „ 
 
 ss. 4-6 
 c. 72, s. 3 
 
 
 442 
 272 
 
 
 
 s. 16 
 
 
 155 
 
 158 
 
 53 
 
 " 
 
 c. 5 
 
 
 423 
 
 46 
 
 
 c. 3, s. 7 
 
 s. 8 
 
 
 
 191 
 737 
 
 53 & 54 
 
 a 
 
 c. 33 
 
 c. 34, s. 18 
 
 
 323, 918 
 
 272 
 
 46 &47 
 
 ., 
 
 c. 22, s. 18 
 c. 38. s. 2 
 
 
 
 23 
 141 
 
 
 tt 
 
 c. 47 
 
 c. 68, s. 12 
 
 
 710 
 459 
 
 
 " 
 
 C. 41, s. 7 
 
 
 444, Ad 
 
 54 
 
 " 
 
 c. 19 
 
 
 18 
 
 
 <( 
 
 C. 45, ss. 2, 3 
 
 
 
 211 
 
 54&55 
 
 " 
 
 c. 69 258, 
 
 263, 
 
 291, 431, 
 
 
 ■< 
 
 (I 
 
 C. 50, s. 77 
 c. 51, s. 1 
 
 s. 2, 3 
 
 
 449 
 
 461 
 
 449 
 
 ,461 
 
 
 a 
 
 c. 69, ss. 1-3 
 s. 2 
 
 
 376, Add. 
 
 75, 79, 80 
 
 79
 
 Cited in the First Volume. 
 
 xxv 
 
 54 & 55 Vict 
 
 c. 
 
 69 
 
 8,4 
 
 ss. 5, 6, 7 
 
 76, 
 
 77,7 
 
 8, 80 
 80 
 
 55 & 56 \ 
 
 id 
 
 c 23, ss. 22- 
 C. 64, ss. 1-4 
 
 26 
 
 PAGE 
 
 710 
 
 487 
 
 u 
 
 c. 
 
 74 
 76 
 
 s. 8 
 
 
 
 81 
 710 
 
 56&57 
 
 ti 
 
 s. 5 
 c. 21 
 
 
 488 
 Add. 
 
 
 c. 
 
 
 
 
 272 
 
 
 u 
 
 C. 23 
 
 
 18, Add. 
 
 
 
 
 s. 47 
 
 
 
 275 
 
 
 " 
 
 c. 39, s. 21 
 
 
 432 
 
 55 " 
 
 c. 
 
 4, 
 
 s. 1 
 ss. 2, 3 
 
 
 
 931 
 
 932 
 
 
 a 
 
 s. 64 
 C. 48, ss. 1, 2 
 
 
 32 
 81 
 
 55 & 56 " 
 
 c. 
 
 23 
 
 ss 4, 5, 6 
 
 
 694 
 
 933 
 
 704 
 
 
 " 
 
 c. 54 
 c. 61 
 
 
 Add. 
 918 
 
 780 
 
 
 
 
 ss. 2, 3, 4 
 
 
 
 704 
 
 
 « 
 
 c. 73, s. 13 
 
 
 
 
 
 ss. 5-8 
 
 
 
 705 
 
 
 
 S. 25 
 
 
 842 
 
 
 
 
 ss. 9, 10 
 
 
 
 706 
 
 
 
 s. 26 
 
 
 793, 842 
 
 
 
 
 ss. 11, 12, 
 
 13 
 
 
 707 
 
 57 &58 
 
 " 
 
 c. 41, s. 15 
 
 
 Add. 
 
 
 
 
 ss. 14-18 
 
 
 
 708 
 
 
 " 
 
 c. 60, ss. 684- 
 
 -687, 
 
 689 Add. 
 
 
 
 
 s. 15 
 
 
 
 298 
 
 58 & 59 
 
 " 
 
 c. 40 
 
 
 Add. 
 
 
 
 
 ss. 19-21 
 
 
 
 709 
 
 
 
 

 
 TABLE OF CASES. 
 
 Page 
 
 Abbot of Combe's case 43 Ass 869 
 
 v. Weekly 1 Lev. 177 762 
 
 Abingdon, Lord R. v 1 Esp. 226 600, 604, 642 
 
 Abraham v. G. N. R. Co 16 Q. B. 586 847 
 
 1 M. & Rob. 7 360, 367 
 
 Absolon, R. v 1 F. & F. 498 538 
 
 Aekroyd, R. v 1 C. & K. 158 71 
 
 Adams v. Kelly R. & M. N. P. C. 157 635 
 
 , R. c C. & M. 299 567 
 
 22 Q. B. D. 66 6*6 
 
 , P.v 3 Denio, 190 l fi l 
 
 Adderbury East, R. v 5 Q. B. 187 874, 878 
 
 Addis, R. v 6 C. & P. 388 951 
 
 Adey, R. v 4 N. & M. 365 778 
 
 Adlard, R. u 4 B. & C. 772; 7 D. & R. 340 429 
 
 Admiralty case 13 Co. 53 268 
 
 Ahearne, R. v 6 Cox, 6 513 
 
 Aickle's case 1 Leach, 391 926, 928 
 
 Albert, R. v 5 Q. B. 37 37 
 
 Aldridge, R. v 1 N. & M. 776 537 
 
 Alexander, S. v 7 Rich. 5 556 
 
 Alford, R. v 1 Leach, 150 341, 343, 384 
 
 Alice de Waldboro's case 1 Hale, 26 115 
 
 Alison, R. v 8 C. & P. 418 146 
 
 Allan, R. v C. & M. 295 906 
 
 Allen v. Hearne 1 T. R. 56 446, 456 
 
 v. Ormond 8 East, 4 761 
 
 v. Westley Hetley, 97 294 
 
 , R. v 10 Cox, 405 22 
 
 L. R. 1 C. C. R. 367 663, 664 
 
 M. C. C. R. 494 ; 7 C. & P. 664 . . . 13-22 
 
 MSS 139 
 
 Allison, R. v R. & R. 109 713 
 
 Almon, R. v 5 Burr. 2687 636, 637 
 
 Alsop, R. v 11 Cox, 264 308 
 
 Alston v. Scales 9 Bing. 3 775 
 
 Altass, R. v 1 Cox, 17 310 
 
 Althausen, R. v 17 Cox, 630 712 
 
 Amarrow, R. v R. & R. 286 10 
 
 Ambury, R. v 6 Cox, 79 918, 925 
 
 Amphlit, R. v 4 B. & C. 35 639 
 
 Anderson, R. v L. R. 1 C. C. R. 161 22 
 
 v. Radcliffe E. B. & E. 806 482 
 
 v. Weston 6 B. N. C. 296 716 
 
 Andrews v. Cawthorne Willes, 537 937 
 
 v. Chapman 3 C. & K. 286 601 
 
 , R. v 2 M. & Rob. 37 957, 961 
 
 1 Cox, 144 954, 961 
 
 Angelo v. P 96 111. 209 114 
 
 Anonymous Matth. Dig. 262 152 
 
 1 Leach, 7 168 
 
 Keilw. 91 b 182
 
 xxviii Table of Cases. 
 
 Page 
 
 Anonymous cited R. & M. C. C. R. 347 100 
 
 5 Cox, 208 08 
 
 3 Salk. 25 202 
 
 '.'.'.'....... 2 Lord Raym. 991 ; 3 Salk. 189 .' '. '202,205 
 
 Mod. 105 202 
 
 2 Salk. 522 204 
 
 6 Mod. 96 416 
 
 6 Mod. 141 882 
 
 9 Cox, 28 237 
 
 1 Cox, 250 240 
 
 3 Salk. 187 205, 882 
 
 3 Atk. 750 273, 732 
 
 1 Ventr. 26 756 
 
 1 Ventr. 370 296 
 
 1 Lord Raym. 725 793, 794 
 
 1 Hawk. P. C. c. 75, s. 11 843 
 
 1 East, P. C. 305 882 
 
 2 Salk. 586 882 
 
 1 Salk. 586 882 
 
 Moor, 754 147 
 
 7 Mod. 10 942 
 
 Loft. 556 842 
 
 1 Ventr. 89 726 
 
 1 Chitty Rep. 698 517, 540 
 
 — MSS. Bailey, J 504 
 
 C.&M. 611 48 
 
 1 Lew. 271 338 
 
 1 Lew. 242 11 
 
 1 Cox, 50 353 
 
 6 Cox, 391 60 
 
 1 Hawk. P. C. c. 69, s. 7 294 
 
 cited 7 Q. B. 798 540 
 
 cited R. v. Farce, 8 E. & B. 486 .... 734 
 
 8 Ad. & Ell. 589 100, 101 
 
 1 Lew. 128 98 
 
 1 Lew. 130, 133 102, 106 
 
 Antrobus, R. v 2 A. & E. 788; 4 N. & M. 565 . . . 419,877 
 
 Apley, R.v 1 Cox, 71 661, 716 
 
 Archer, R. v R. & M. C. C. R. 143 148 
 
 Ardsley, R. v 3 Q. B. D. 255 900 
 
 Arms, case of Poph. 121 385 
 
 Armstrong, R. v 13 Cox, 184 16 
 
 1 Ventr. 304 503 
 
 Arnold's case 8 St. Tr. 317 121 
 
 Arnold v. Blaker 40 L. J. Q. B. 185 770, 785 
 
 v. Holbrook 42 L. J. Q. B. 80 755, 802, 803 
 
 v. Mundy 1 Halst. 1 842 
 
 Aronegarv v. Vaigalie 6 Ap. Cas. 364 700 
 
 Ashburn, R. v 8 C. & P. 50 368 
 
 Ashby Folville, R, v 35 L. J. M. C. 154 800, 816 
 
 Asher v. Calcraft 18 Q. B. D. 607 658 
 
 Ashford v. Thornton 1 B. & Aid. 423 43 
 
 Ashley's (Sir Anthony) case . . . 1 Roll. R. 109 555 
 
 Ashley v. Harrison 1 Esp.48 C07 
 
 Ashmall, R. v 9 C. & P. 237 186 
 
 Ash ton's case 1 Lew. 296 567 
 
 Ashwell, R. v 16 Q. B. I). 190 117 
 
 Askew, R. v 3 M. & S. 9 343 
 
 Aspinall. R.v 1 Q. B. D. 720 500 
 
 Aspindall v. Brown 3 T. R. 265 809 
 
 Astley v. Younge 2 Burr. 817 599 
 
 Aston v. Gwinnell 3 Y. & J. 136 435 
 
 Ingham, R. v MSS. C. S. G 823 
 
 Athea's case 2 Lew. 191 959 
 
 Atkins' case 7 How. St. T. 231 170 
 
 Atkins, R. v 3 Burr. 1706 204 
 
 Atkinson, R. v MSS. Bavley, J 147, 159 
 
 3 Salk. 188 204 
 
 Ld. Raym. 1248 ; 1 Salk. 382 427 
 
 2 Moo. C. C. 278 ; C. & M. 525 32
 
 Table of Cases. xxix 
 
 Page 
 
 Atkinson, R. v 11 Cox, 330 557 
 
 Dom. Proc. 1785 361 
 
 Attorney-General v. Oxford .... C. & P. 532 139 
 
 v. Parnther 3 Br. Cli. Cas. 441 L39 
 
 v. Riddell 2 Tyrw. 523 J74 
 
 v. Siddon 1 Tyrw. 41 274 
 
 v. Sillem 2 H. & C. 431 251 
 
 Attwood v. Joliffe 3 Sess. C. 116 720 
 
 Aunger, R. v 12 Cox, 407 597 
 
 Austin's case 1 Ventr. 189 761,793 
 
 Austin, R. v 1 C. & K. 621 949 
 
 7 C. & P. 796 187 
 
 2 Cox, 59 50 
 
 Austrey, R. v 6 M. & S. 319 69 
 
 Avery, R. v Bell C. C. 150 158 
 
 , S. v 7 Conn. 267 748 
 
 Aver v. Norwich 39 Conn. 376 789 
 
 Aylett, R. v 1 T. R. 69 294, 333, 340, 353, 363 
 
 B. 
 
 Bacon, R. v 11 Cox, 540 307 
 
 Badcock, R. v R. & R. 249 174 
 
 Badger, R. v 4 Q. B. 468 417 
 
 Baer, S. v 18 Blatch. 493 381 
 
 Bagge, R. v 44 L. J. M. C. 45 796 
 
 Bagley, C. v 7 Pick. 279 425 
 
 Bagshaw v Boston Local Board . . 45 L. J. Ch. 260 754 
 
 Bahamas, In Re (1893) A. C. 138 194 
 
 Bailey v. Jamieson 1 C. P. D. 329 761 
 
 -, R. v 4 Cox, 390 931 
 
 7 C. & P. 264 337 
 
 6 Cox, 29 60 
 
 Baillie, R. v 30 Geo. 3 610 
 
 Bain, R. v L. & C. 129 63 
 
 Bainbridge v. Bainbridge 4 Cox, 454 137 
 
 Bainton, R. v 2 Str. 1088 367 
 
 Bake, R. r 3 Burr. 1731 717 
 
 Baker v. Greenhill 3 Q. B. 148 875 
 
 v. Rusk 15 Q. B. 870 456 
 
 v. S 12 Ohio (N. S.), 214 174 
 
 ■ v. Townshend 7 Taunt. 422 412 
 
 v. Wilkinson C. & M. 399 639 
 
 ,R. v (1895) 1 Q. B. 797 Add. 
 
 Baldwin, R. v 8 A. & E. 168 630 
 
 Ball v. Herbert 3 T. R. 253 842 
 
 , R. v R. & M. C. C. R. 330 945, 951 
 
 6 C & P. 563 405 
 
 6 Cox, 360 314 
 
 Ball's case 1 Campb. 325 241 
 
 Balme, R. v Cowp. 648 201, 775, 884 
 
 Bamber, R. v 5 Q. B. 279 774 
 
 Bamford v. Turnley 2 F. & F. 231 431 
 
 Banbury Urban Sanitary Authority v. 
 
 Page 8 Q. B. D. 97 732 
 
 Bangor (Bishop of), R. v Salop, 1796 570 
 
 Banks, R. v 1 Cox, 238 149 
 
 Bann Fishery case Dav. R. 57 a 850 
 
 Bannen, R. v 2 M. C. C. R. 309; 1 C. & K. 295 . . .166,229 
 
 Barber, R. r 1 C. & K. 442 188 
 
 , C. v 133 Mass. 399 902 
 
 Barclay v. C 1 Casey, 503 755 
 
 , v. Pearson (1893) 2 Ch. 154 754 
 
 Bardell, R. v 5 A. & E. 619 414 
 
 Barham, R. i- R. & M. C. C. R, 151 060 
 
 Barlow, C. v 4 Mass. 439 193 
 
 R. v 2 Salk. 609 420 
 
 25 Q. B. D. 213 804,811
 
 xxx Table of Cases. 
 
 Page 
 
 Barnes v. Constantine .... Yelv. 46 490 
 
 R „ L.K.1C.C.K.45 62 
 
 ' . ... 7 C. & P. 166 106 
 
 Ward 9 C. B. 392 789 
 
 Barnoldswick, R. v 4 Q. B. 499 800 
 
 Barnwell, R. v 5 W. R. 558 449 
 
 Baroisse, R. v 5 Cox, 559 60 
 
 !>.,,,• ]> ,• 4 Carapb. 16 763 
 
 Barrkclough v. Johnson 8 Ad. & E. 99 707 
 
 Barrett v. Long 3 H. L. C. 395 632,644 
 
 r v . ... 9 Cox, 255 757 
 
 ' '.'.'. 6 Cox, 78 100 
 
 Barronet's case 1 E. & B. 1 100 
 
 Barry R v 4 F. & F. 389 528 
 
 Barthelemy v. P 2 Hill, N. Y. 248 647 
 
 Bartholomew R. v 1 C. & K. 366 35/ 
 
 v. Pickersgill 4 East, 577 317 
 
 Bartlett v. Smith 11 M. & W. 483 61 
 
 Barton, R. v 11 A. & E. 343 804 
 
 3 Cox, 275 130 
 
 Batchelder, S. v 5 N. H. 549 205 
 
 Bateman v. Bluck 18 Q. B. 870 755, 761 
 
 v . Burge 6C. &P. 391 785 
 
 , R. v 27 L. J. M. C. 95 759 
 
 Bathurst, R. v Say. 225 717 
 
 Bath wick, R. v 2B. & Ad. 639 701,716 
 
 Batt, R. v. . .• 6 C. & P. 329 566 
 
 Baude's case Cro. Jac. 41 725, 727 
 
 Bauld, R. v 13 Cox, 282 547 
 
 Baxter R. v MSS. C. S. G. ; 5 Cox, 302 422 
 
 v. Taylor 4 B. & Ad. 72 765 
 
 Bayard, K.v , . 2 Q. B. 181 101 
 
 Bayley, C. v 7 Pick. 279 423 
 
 — R. v R. & R. 1 10 
 
 Andr. 229 610 
 
 Baylis v. Lawrence 11 A. & E. 920 646 
 
 Baynes v. Brewster 2Q. B. 375 .591 
 
 Beach v.P 11 Mich. 106 842 
 
 Beak v. Thyrwhit 1 Show. 6 42, 52 
 
 Beale, R. v cited 1 East, R. 183 433, 443 
 
 Beamish v Beamish 9 H. L. C. 274 093 
 
 Beard, R. v 8 C. & P. 143 30, 31 
 
 Beardmore v. Tredwell 31 Law J., Chanc. 892 731 
 
 Beardsall, R. v. . 1 Q. B. D. 452 457 
 
 Beare, R. v 2 Salk. 417 626, 633 
 
 Beatty v. Gillbanks 9 Q. B. D. 308 571 
 
 Beavan,R.« R. & M. N. P. C. 242 727 
 
 Bedford, R. v 2 Str. 789 618 
 
 Bedfordshire, R. v 4 E. & B. 535 816, 877 
 
 Beech's case 1 Leach, 133 337, 640 
 
 Beelev v. Wingfield 11 East, R. 46 412 
 
 Bell's'case Fost. 430 227, 229 
 
 Bell, R. v 12 Cox, 37 4 
 
 Bellamy, R. v R. & M. N. P. R. 171 342 
 
 Bellingham's case Collis, 636 122 
 
 Belt, R. v 2 Salk. 586 882 
 
 Bembridge, R. v cited 6 East, R, 136 195, 422 
 
 1 Salk. 380 415 
 
 Benesech, R. o Peake Add. C. 93 316, 318 
 
 Benfield, R. v 2 Burr. 980 597 
 
 Benjamin v. Storr 4 L. J. C. P. 163 732 
 
 Bennet v. Filkins 1 Saund. 23 816 
 
 v. Watson 3 M. & S. 1 66 
 
 Bennett, R. v Bell C. C. 1 736 
 
 2 Den. C. C. 240 311, 358 
 
 Benson, R. u 2 Campb. 508 337,383 
 
 Benstead's case Cro. Car. 583 901, 904 
 
 Bent, R.v 1 Den. C. C. 157 400, 458 
 
 Bentley v. Vilmont 12 App. Cas. 471 87 
 
 Berkeley v. Wathen 959
 
 Table of Cases. xxxi 
 
 Paoe 
 
 Bernard, R. v 2 Salk. 52 ; Lord Raym. 94 429 
 
 IF. &F. 240 511 
 
 Berridge v. Ward 10 C. B. (N. S.) 400 763 
 
 Berry, R. v Bell C. C. 95 156, 306, 316 
 
 1 Q. B. D. 447 141 
 
 28 L. J. M. C. 86 304 
 
 Best, R. v 2 M. C. C. R. 124 ; 9 C. & P. 368 . . 415, 496 
 
 , R. v 2 Lord Raym. 1167 .... 491, 495, 503, 514, 
 
 515, 525, 527 
 
 Betts, R. v 16 Q. B. 1022 790, 842, 847, 875 
 
 Bevan v. M'Mahon 30 L. J. Dora. 61 692 
 
 Bevans, S. v 37 Iowa, 178 419 
 
 Beverley's case 4 Co. 124, 125 118, 143 
 
 Bibithe's case 4 Rep. 43 172 
 
 Bidwell, R. v 1 Den. C. C. 222 886 
 
 Biers, R. v 1 A. & E. 327 518, 540 
 
 Bigler, P. v 5 Cal. 23 170 
 
 Bignold, R. v Trin. T. 1824 354 
 
 Bill v. Bament 8 M. & W. 317 394 
 
 Billingham, R. v 2 C. & P. 234 . . 571, 587 
 
 Billinghurst, R. v 3 M. & S. 250 688 
 
 Bingley. R. v R. & R. 446 173 
 
 Birch, 11. v 4 F. & F. 407 528 
 
 Birchenough, R. v R. & M. C. C. R. 742 48, 50, 188 
 
 Birmingham, R. i- 8 B. & C. 29 663, 672, 693 
 
 Birmingham & Gloucester R. Co., R. v. 3 Q. B. 223 793, 874 
 
 2Q. B. 47 792 
 
 Bird, R. v 2 Den. C. C. 94 51 
 
 17 Cox, 387 340 
 
 Gloucester Spr. Ass. 1842 .... 360, 379 
 
 Birt v. Barlow Dougl. 162 713 
 
 Birt, R. v 5 C. & P. 154 570 
 
 Bishop Auckland Local Board p. I inn R T ^ 1QQ „ 00 
 
 Bishop Auckland Iron Company. J iU *<■ "• "• ld8 '*» 
 
 Bishop Auckland, R. v 1 Ad. & E. 744 802,811 
 
 Bishop, R. v C. & M. 302 349 
 
 Bixbv, P. v 4 Hun, 636 750 
 
 Bjornsen, R. v 34 L. J. M. C. 180 22 
 
 Blaby, R. v (1894) 1 Q. B. 170 235 
 
 Blackawton, R, v 10 B. & C. 792 778 
 
 Blackburn's case O'M. & H. 204 44y 
 
 Blackson, R. v 8 C. & P. 43 187 
 
 Bladen, S. v 1 Peters C. C. 213 260 
 
 Blades v. Higgs 10 C. B. (N. S.) 713; 12 C. B. (N. S.) 501 . 205. 
 
 717, 944 
 
 Blagg v. Sturt 10 Q. B. 899 610, 612. 631 
 
 Blair, S. v 13 Rich. (Law) 93 553 
 
 Blake v. Beech 45 L. J. M. C. Ill 301 304 
 
 , R. v 6 Q. B. 126 520,532 
 
 v. Pilford 1 M. & Rob. 198 610, 612 
 
 Blakemore, R. v 14 Q. B. 544 414 
 
 2 Den. C. C. 410 817 
 
 21 L. J. M. C. 60 817 
 
 Blankard v. Galdy 4 Mod. 222 ; 2 Salk. 411 . 435 
 
 Blea, R. v 8 C. & P. 735 73 
 
 Blick, 11. v 4 C. & P. 377 189 
 
 Bliss w.Hall 4 B. N. C. 183 758 
 
 Bloomfield v. Blake 6 C. & P. 75 499 
 
 iUoomuffv. S 8 Black, 205 . 741 
 
 Boaler v. R 21 Q. B. D. 284 648 
 
 Bodenham, R. v Cowp. 78 819 
 
 Bodmin case Willes, J 446 
 
 Bolam's case Rose. Crim. Ev. 220 103 
 
 Bonar v. Mitchell 5 Ex. Rep. 415 30 
 
 Bond, R. i- 6 Ad. & E. 905 778 
 
 Dears. C. C. 517 48 
 
 Bonner, C. v 9 Met. 410 647 
 
 Boober, R. v 4 Cox, 272 232 
 
 Boogher, S. v 3 Mo. App. 442 597 
 
 Booth, R. v R. & R. 47 420
 
 xxxii Table of Cases. 
 
 Page 
 
 Bootie, R. v 2 Burr. 864 895 
 
 Bordw. S 21 Gratt. 800 (35!) 
 
 Borrett,R. v 6 C. & P. 124 4^:; 
 
 Borron, R. v 3 B. & Aid. 434 417 
 
 Borthwick, R. v Dougl. 207 1G2 
 
 Bosanquet v. Woodford 5 Q. B. 310 31 
 
 Botfield, R. v C. & M. 151 806 
 
 Bothe's case Moor. 666 173 
 
 Boulter, R. v 2 Den. C. C. 396 370,372 
 
 Boulton, R. v 5 C. & P. 537 26 
 
 12 Cox, 87 491 
 
 Bourdon, R. v 2 C. & K. 366 890 
 
 Bow v. Fenwick 43 L. J. M. C. 107 745 
 
 Bowen, R. v 9 C. & P. 509 52 
 
 2 C. & K. 227 697 
 
 Bower, R. v Cowp. 323 203, 225 
 
 1 B. & C. 587 428 
 
 Bowes, R. v 4 East, R. 163 •• . 527 
 
 's case Collis, 673 122 
 
 Bowler, R. v C. & M. 559 399, 400, 457 
 
 Bowman, Kv 6 C. & P. 337 48,49 
 
 Bowser, R. v 8 D. P. R. 128 726 
 
 Boyal, R. v 2 Burr. 832 200, 201, 895 
 
 Boyle, R. v 7 Cox, 428 888 
 
 17. Wiseman 11 Ex. 360 61 
 
 Bovnes, R. v 1 C. & K. 65 300, 402 
 
 Boys, H. i- Say. 143 420 
 
 Bradfield, R. v 43 L. J. M. C. 155 767 
 
 Bradford, U.v 1 Ld. Raym. 366 ; 8 Salk. 189 204 
 
 2 C. &D. 41 217 
 
 Navigation, R. v 34 L. J. Q. B. 191 753,791 
 
 Braillaugh v. R 3 Q. B. D. 607 632 
 
 i«. Newdegate 11 Q. B. D. 1 478 
 
 , R. v 15 Cox, 156 4, 616, 649 
 
 Bradley's case 1 Leach, 327 383 
 
 , R. v Staff: Spring Assizes, 1844 346 
 
 v. Methuen 2 Ford's MS. 78 597 
 
 Bradshaw, R. v 7 C. & P. 233 882 
 
 Brady's case 1 Stark. C. P. 80 162 
 
 1- 1 Bos. & P. 188 277 
 
 Brain, R. v 3 B. & Ad. 614 429 
 
 Braithwaite, R. v 1 F. & F. 638 371 
 
 Brampton, K. v 10 East. 287 666, 700 
 
 Brandon's case cited R. T. H. 370 198 
 
 Brashier v. Jackson 6 M. & W. 549 61 
 
 Brawn R. v 1 C. & K. 144 664 
 
 Bray, R. v 32 L. J. M. C. 11 3 
 
 1- 9 Cox, 218 385 
 
 Brecon case No. 2 Lush, J 446 
 
 Breconshire, R. v 15 Q. B. 813 873 
 
 Breed, C.v 4 Pick. 460 842 
 
 Brenman v. Tracey 2 Mo. App. 540 597 
 
 Brennan v. P 15 111. 511 170 
 
 6 Cox, 381 883 
 
 Brett v. Robinson L. R. 5 C. P. 503 446 
 
 Brettell.R. v C. & M. 609 48 
 
 Brickell v. Hulse 7 A. & E. 454 388, 403 
 
 Brickhall, R. i- 33 L. J. M. C. 156 304 
 
 Bridekirk, R. v 11 East, 304 814 
 
 Brier, R . v 14 Q. B. 568 744 
 
 Briggs, C. v 5 Met. 559 902 
 
 , R. v R. & M. C. C. R. 318 912, 944 
 
 , Dean v B. C. C. 98 660 
 
 Bright, R. u 4 C. & P. 387 591 
 
 Hriulitside Bierlow, R. v 13 Q. B. 933 794,818 
 
 Brighton, R. v 1 B. & S. 447 666 
 
 Brigstock, R. v 6 C. & P. 184 645 
 
 BriBac, R. v 4 East, R. 163 167,481,527 
 
 I'.rishv, R. v 1 Den. C. C. 416 307, 884 
 
 Bristol (Govs, of the Poor of ) v. Wait 5 A. & E. 1 941
 
 Table of Cases. xxxiii 
 
 Page 
 
 Bristol Spec. Commiss 5 C. & P. 265 iAn 
 
 British Museum (Trustees of) t/.Finnis 5 C. & P. 460 700 
 
 Brittain, R. v 3 Cox, 76 5:;;; 
 
 Brittou, R. v 17 Cox, 027 376 
 
 Brockway v. P 2 Hill, 558 740 
 
 Brodribb, R. v 6 C. & P. 571 405,406,408,571 
 
 Broke, R. v 1 F. & F. 514 766 
 
 Bromage v. Prossie 4 Bal. 247 Add. 
 
 Brompton County Court (Judge of), ) (18<J3) 2 q B . 195 ly4> 882 
 
 Brook v. Brook 3 Small & G. 481 060 
 
 Brooke, R. v 7 Cox, 251 634 
 
 Brooks, P. v .1 Denio, 471 410 
 
 , R. « 1 Den. C. C 217 040 
 
 1 Dears. C. C. 184 149 
 
 Brough, R. v 2 F. & F. 838 135 
 
 Broughton, B. o 5 Burr. 2700 812 
 
 Trem. P. C. Ill 420 
 
 Brown's case 1 Lew. 42 . . 199 
 
 , P. v 54 Mich. 15 376 
 
 v. P 4 Gilm. 439 233 
 
 R. v 24 Q. B. D. 357 63 
 
 C. & M. 314 590 
 
 Moo. & M. 163 281 
 
 M. & M. 315 385, 388 
 
 (1895) 1 Q. B. 119 929, Add. 
 
 , S. v 79 N. C. 642 310 
 
 12 Minn. 490 423 
 
 Brown v. Mallett 5 C. B. 599 848 
 
 v. Turner 13 C. B. (N. S.) 485 948 
 
 Browning, B. v 3 Cox, 437 403 
 
 Brownlow v. Tomlinson 1 M. & Gr. 484 . . ■. 790 
 
 Bruce's case 2 Leach, 1093 ; R. & B. 243 10 
 
 Bruce v. S 87 Ind. 450 734 
 
 Brunswick (Duke of) v. Harmer . . 3 C. & K. 10 640, 044 
 
 Bryan, R. v 2 Str. 860 202 
 
 Buccleugh (Duchess of), R. v. . . . 1 Salk. 358 802, 856 
 
 Buchanan, R. v 8 Q. B. 883 200 
 
 Buck, R. v 1 Str. 679 202 
 
 Buckingham (Marquis of), R. v. . . 4 Campb. 189 769, 854 
 
 Buckland, R. v 34 L. J. M. C. 178 822, 829 
 
 Buckle, R. v MSS 881 
 
 Bucknall, R. v 2 Ld. Ravm. 792, 804 856 
 
 Bucknell, R. v 7 Mod. 55 811, 875 
 
 Bucks (Inhab.) R. v 12 East, 204 852, 855, 804 
 
 Buckworth, R. v. T. Raymond 170, 384 
 
 Bulbrooke v. Goodere 3 Burr. 1768 847 
 
 Bull, R. v 1 Cox, 281 167 
 
 1 Cox, 137 35 
 
 Bullock, 11. v Dears. C. C. 653 38, 519 
 
 1 Taunt. 71 382 
 
 Bullock v. Parsons 2 Salk. 454 334 
 
 Buncombe, B. v 1 Cox, 183 146 
 
 Bunn, B. v 12 Cox, 316 541, 544, 547, 550 
 
 Bunse, B. v 12 Cox, 316 492 
 
 Bunyan, R. v 1 Cox, 74 740 
 
 Burder, II. v 4 T. R, 778 42 ( .> 
 
 Burdett, R. v 1 Ld. Raym. 149 426, 428 
 
 4B. & A. 314 . . . . 631,633,634,640.641, 
 
 643, 645, 646, 651 
 
 Burgess v. Boetefeur 7 M. & G. 481 744 
 
 v. Coney 1 Trem. PI. C. 315 89 
 
 , R. v T. & T. 1813 164, 859, 865 
 
 16 Q. B. D. 141 412 
 
 Burgiss, R. v . . . . 7 C. & P. 488 . . , 30 
 
 Burling v. Read 11 Q. B. 904 718 
 
 Burnby, R. v 5 Q. B. 348 366 
 
 Burnbv v. Bollett 16 M. & W. 644 275 
 
 Burnham, S. v 15 N. H. 396 516 
 
 Burnett, R. v 4 M. & S. 272 274 
 
 TOT-. I. '
 
 xxxiv Table of Cases. 
 
 Page 
 
 Hums, R. v 16 Cox, 355 556, 505. 618 
 
 Burraston, R. v 4 Jurist, 697 318,355 
 
 Burridee R v 8 P. Wins. 497 ... 895, 902, 905, 907, 914 
 
 Burt v. Burt 29 L. J. P. & M. 133 664 
 
 Burt, R. v 11 Cox, 399 792 
 
 Burt v.S 3 Brev. 413 722 
 
 Burton, R. v 13 Cox, 71 3, 174 
 
 3F. &F. 772 131,187 
 
 Burton-on-Trent, R. v 3 M. & S. 537 688 
 
 Bury Improv. Connniss., R. v. ... 11 Cox, 641 793 
 
 Busby >: Watson 2 Bl. R. 1050 490 
 
 Bush t\ Steinman 1 Bos. & P. 407 788 
 
 Bushell'scase Vaugh. 152 368 
 
 Bushell, R v 16 Cox, 367 95 
 
 Butcher v. Butcher 7 B. & C. 399 718 
 
 It. v 6 C. & P. 368 196 
 
 Butler,' R. v R. & R. 61 092 
 
 Butterfield v. Forester 11 East, 60 732 
 
 R. v 1 Cox, 39 177, 188 
 
 Butterfield, R. v 17 Cox, 598 882 
 
 Butterwick, R v 2 M. & Rob. 196 99 
 
 Buttle, It. v 11 Cox, 566 454 
 
 Button, It. v 11 Q. B. 929 522 
 
 Buxton v. Gouch 3 Salk. 269 297, 328 
 
 Bvkee » . S 94 Ind. 443 785 
 
 Bykerdyke, R. v 1 M. & Rob. 179 539,966 
 
 Byrne, R. v. 6 Cox, 475 , 212 
 
 Byrnes v. Byrnes 102 N. Y. 4 294 
 
 C. 
 
 Cain, R. v 2 Moo. C. C. 204 33 
 
 ("aider, S. v 2 McCord, 462 543 
 
 Cale, R. v R. & M. C. C. R. 11 193 
 
 Calhoun, P. v 3 Wend. 420 425 
 
 Oallavan, R. v 6 B. & C. 102 335, 351, 355 
 
 Cambridgeshire, R. v 4 Ad. & E. Ill 776 
 
 Caminada v. Hulton ' 17 Cox, 307 755 
 
 Campbell v. Lang 1 Macq. Seo. Ap. C. 451 761 
 
 v. Spottiswoode 31 L. J. Q. B. 185 606 
 
 Canfield (Great), R.u 6 Esp. 130 810 
 
 Cannon v. Rands 11 Cox. 630 413 
 
 Cant, R. v C. & M. 521 884 
 
 Capewell, R. v 5 C. & P. 549 956, 960, 961 
 
 Cargill, S. v 2 Bre. 445 722 
 
 Carle v. Elkington 17 Cox, 557 207 
 
 Carlisle, C. v Journ. of Juris. 235 544 
 
 , R. v 3 B. & Aid. 161 201, 601, 614 
 
 Dears. C. C. 337 509 
 
 1 Cox, 229 634 
 
 6 C & P. 636 787 
 
 Carmichael v. S 12 Ohio (N. S.), 553 659 
 
 Carpenter, R. v 2 Show. 47 877 
 
 , S. v 20 Verm. 9 487 
 
 Carr v. Hood 1 Campb. 355 006 
 
 , It. v 10 Q. B. D. 76 10, 22 
 
 1 Lid. 418 379, 393 
 
 10 Cox, 564 387 
 
 , S. v 71 N. C 106 419 
 
 Carroll, R. v 7 C. & P. 145 144 
 
 Carter, R. v 1 Den. C. C. 65 30, 31 
 
 Cartwright, R. v R. & Ry. 107 196 
 
 4 T. R. 490 290 
 
 Casaca, R v 5 App. Ca. 48 472 
 
 Casbolt, R. v 11 Cox, 385 949 
 
 Case, R. v 1 Fast. P. C. 165 214 
 
 Caspar, It. t- 2 M. C. C. It. 101; 9 C. & P. 289 .... 186
 
 Table of Cases. xxxv 
 
 Cassano, R. v 5 Esp. 231 197 
 
 Castle's case Cro. Jac. 643 202 
 
 Castro v. R 6 App. Cas. 229 37, 85, 397 
 
 Castro, R.v L. R. 9 Q. B. 350, 357 64 
 
 Cates v. Knight 3 T. R. 445 200 
 
 Cathermood v. Caslon 13 M. & W. 261 693, 713 
 
 Cator, R. v 4 Burr. R. 2026 193 
 
 Cator, R. v 2 East, 361 607 
 
 Caudle v. Seymour 1 Q. B. 889 346 
 
 Cavey v. Ledbitter 3 F. & F. 14, 13 C. B. (N. S.) 470 ... . 731 
 
 Cawood, S. v 2 Stew. 360 491 
 
 Central Criminal Court, 11. v. ... 17 Q. B. D. £88 88 
 
 Chad v. Tilsed 5 Moore, 185 844 
 
 Chadderton, R. v 5 T. R. 272 824 
 
 Chadwick, R. v 11 Q. B. 173 665 
 
 Challicombe, R. v 2 M. & Rob. 311 (a) 822 
 
 Chamberlain v. P. 22 N. Y. 85 376 
 
 , R. v 6C. &P. 92 49 
 
 Champney's case 2 Lew. 258 368 
 
 Champneys, R. v 2 M. & Rob. 26 , 47 
 
 1 Ld. Raym. 581 392 
 
 Channel, R. v 2 Str. 893 202 
 
 v. Cripps 2 F. & F. 864 762 
 
 Chapman, C. v 11 Cush. 422 161 
 
 , Ex parte 4 A. & E. 773 625 
 
 , R. v 1 Den. C. C. 432 196, 296 
 
 8 C. & P. 558 52 
 
 Chappel, R. v 1 Burr. 402 594 
 
 Chappie, R. v 3 Camp. 91 428 
 
 Chappie, R. v 17 Cox, 455 37 
 
 , R. v 9 C. &. P. 355 178 
 
 Charles, R. v 1 L. & C. 90 747 
 
 Charlsworth, R. v 16 Q. B. 1012 788 
 
 Charlton v. Watton 6 C & P. 835 602 
 
 Charretie, R. v 13 Q. B. 447 440 
 
 Chart v. Longbridge 39 L. J. M. C. 107 826, 852 
 
 Chaundler, R. v 2 Ld. Raym. 1368 202 
 
 Chedworth, R. v 9 C. & P. 285 822 
 
 Cheere, R. v 4 B. & C. 902 943, 953 
 
 Cheltenham case O'M. & H. 64, 165 446 
 
 Chester Mill case 10 Rep. 137 851 
 
 Chichester v. Hill 15 Cox, 258 87 
 
 v. Mure 32 L. J. P. & M. 146 662 
 
 Child, R. v 4 C. & P. 442 573 
 
 2 Cox, 102 727 
 
 5 Cox, 197 335, 342, 345, 376 
 
 v. Affleck 9 B. & C. 403 607 
 
 Childress v. Black 9 Yerg. 317 722 
 
 Chisholm v. Doulton 22 Q. B. D. 736 274, 758 
 
 Chittenden, R. v 15 Cox, 725 789 
 
 Chitty, S.v 1 Bailey, 401 480 
 
 Choice v.S 31 Geo. 424 138 
 
 Chorley, R, v 12 Q. B. 515 771, 819 
 
 Christian, R. v C. & M. 388 53,388,305 
 
 Christie v. Peart 7 M. & W. 491 31 
 
 Chugg, R. v 11 Cox, 558 306 
 
 Church ward v. Study 4 East, R. 249 944 
 
 Cincinnati Ry. v. C 80 Ky. 137 789 
 
 Cirwan's case 1 East, P. C. 182 233 
 
 Clapp, C. v 4 Mass. 163 595 
 
 Clarence, R. v 22 Q. B. D. 23 204, 276 
 
 Clark v. Molyneux 3 Q. B. D. 237 609 
 
 , P. v 10 Mid. 310 491 
 
 2 Cox, 183 693 
 
 15 Cox, 171 747, 934 
 
 R. & M. C. C. R. 376 155 
 
 1 Salk. 377 943 
 
 5 Q. B. 887 823 
 
 Dears. C. C. 198 71
 
 xxxvi Table of Oases. 
 
 Page 
 
 CJark, P. v 14 Q B. D. 92 80 
 
 -, R. i> R. &R. 358 44 
 
 Clarke, R. v 1 F. & F. 654 448 
 
 , IB. &B. 473 42,44,50 
 
 r. Crowder 38 L. J. M. C. 118 941) 
 
 v. Periam 2 Atk. 339 745 
 
 Clayton.R.u 1 C. & K. 128 184 
 
 Cleckheaton, R. v 11 Law T. 305 822 
 
 Cleggy. Laffer 10 Bing. 250 632 
 
 Clement v. Fisber 7 B. & C. 459 630 
 
 Clerk R. v 1 Barnard, 304 633 
 
 Clerke, R. v 1 Kebl. 393 428 
 
 Clifford v. Brandon 2 Campb. 369 501,554,556,557 
 
 Clifton, R.i> 5T. 11.502 813,872 
 
 (Inhab.), R. v 5 T. R. 498 797 
 
 6 T. R. 344 824 
 
 Cluderoy, R. v 1 »en. C. C. 514 103 
 
 Clutterbuck v. Chaffers 1 Stark. 471 634 
 
 Cluworth, R. v 1 Balk. 358 820 
 
 Coalheaver's case 1 Leach, 66 102 
 
 Cobbett, R. v. 1804 Holt on Libel, 114 623, 626 
 
 Cochrane (Lord) R. w 3 M. & S. 10 543 
 
 Cockayne v. Hodgkinson 5 C. & P. 543 608 
 
 Coggins, R.w 12 Cox, 517 164 
 
 Coghlan, R. v 4 F. & F. 316 648 
 
 Cohen, R. v 1 Stark. R. 516 297, 819 
 
 11 Cox, 99 153 
 
 v. Huskisson 2 M. & W. 477 591 
 
 Colchester (Mayor of) v. Brooke . . 7 Q. B. 339 755, 842 
 
 Cole, P. v 43 N. Y. 508 158 
 
 , S. v 5 McLean, 513 491 
 
 2McCord, 117 556 
 
 v. Fisher 11 Mass. 137 787 
 
 Colebourne, R. v 1 F. & F. 654 448 
 
 Coleridge, R. v 2 B. & Aid. 806 937 
 
 Colling, R. v 2 Cox, 184 816 
 
 Collins, R. v L. & C. 471 63 
 
 9 C. & P. 456 622 
 
 v. Blantern 2 Wils. 341 412, 413 
 
 Column, S.v 5 Porter, 32 161 
 
 Commerell, R. v 4 M. & S. 203 824 
 
 Commings, R. v 5 Mod. 179 418, 419 
 
 Compagnon v. Martin 2 Black. R. 790 335, 3<8, 395 
 
 Compton, R. v Cald. 246 418,502 
 
 Conley, C. v 1 Allen, 7o2 
 
 Connell, R. v 6 Cox, 178 44, 63 
 
 1 C. & K. 190 238 
 
 Constable, R. v 3 B. & Ad. 657 742 
 
 Coogan.R.* 1 Leach, 448 49,50 
 
 Cook, P. v 4Seld. 67 381,423 
 
 R v 7 C. & P. 559 53 
 
 ' R. & R. 176 36 
 
 13 Q. B. D. 377 746, 747 
 
 1 F. & F. 389 99 
 
 „. Field 3 Esp. R. 134 189, 482 
 
 15 Q. B. 460 356 
 
 v. Nethercote 6 C. & P. 741 591 
 
 Cooke, R. v 2 Den. C. C. 462 307, 318 
 
 5 B. & C. 538 513 
 
 7 C. & P. 559 53 
 
 v. Ward 6 Bing. 409 626, 639 
 
 v. Wildes 5 E. & B. 328 612 
 
 Coorabes v. Pitt 1 Bl. R. 524 455, 456 
 
 Cooper, R. v 5 C. & P. 535 172 
 
 2 Str. 1246 753 
 
 3 Sess. C. 346 419 
 
 MSS. C. S. G 585 
 
 8 Q. B. 533 635 
 
 , S. v 2 Denio, 293 595 
 
 v. Slade 6 II. L. C. 746 444, 446, 447
 
 Table of Cases. xxxvii 
 
 Page 
 
 Cooper v. Walker 2 B. & S. 770 769 
 
 Cope, R. c OAd. &E. 226 418 
 
 1 Str. 144 534 
 
 Coppard, E. v Moo. & M. 118 334,341 
 
 Corbett, R. v 4 F. & F. 555 280 
 
 Cornwell v. Metropolitan Commission- 
 ers of Sewers 10 Excli. R. 771 805 
 
 Corry, R. v 5 East, R. 372 421 
 
 Cosan's case 1 Leach, 342 • . . . 289 
 
 Cottingham (Inhab.), R. w 6 T. R. 20 768,806 
 
 Cottle, R. v 16 Q. B. 412 805 
 
 Cotton, R. v 3 Campb. 444 818 
 
 County, R. v MSS. Bayley, J 167 
 
 Coupey v. Henley 1 Esp. N. P. C. 540 691 
 
 Courtney, P. v 31 Hun, 199 376 
 
 , R. v 7 Cox, 111 314, 319 
 
 Coventry case 1 O'M. & H. 105 446 
 
 Coverdale v. Charlton 4 Q. B. D. 104 835 
 
 Coward v. Wellington 7 C. & P. 531 608 
 
 Cowley v. Newmarket Local Bd. . . (1892) A. C. 345 793 
 
 Cowling v. Higginson 4 M. & W. 245 708 
 
 Cox, R. v 4 C. & P. 538 64, 584 
 
 9 Cox, 301 402 
 
 r. Andrews 12 Q. B. D. 126 747 
 
 v. Lee 38 L. J. Ex. 219 626 
 
 Coxhead v. Richards 2 C. B. 569 609 
 
 Craddock, R. v 3 F. & F. 837 095 
 
 Craig, P. v Addis. 191 553 
 
 Crane, S. v 4 McLean, 317 180 
 
 Crawlev, R. v 12 Cox, 162 346 
 
 " 3 F. & F. 109 275 
 
 Crawshaw, R. v Bell C. C. 303 746, 754 
 
 Crawshay, Ex parte 8 Cox, 356 257 
 
 Creevey, R. v 1 M. & S. 281 601, 604 
 
 Crespigny, R. v 1 Esp. 280 294 
 
 Cresswell, R. v 1 Q. B. D. 446 695 
 
 Crick, R. v 5 C. & P. 508 961 
 
 Cricklade, R. v 14 Q. B. 735 782,783 
 
 Crisp, R. v 1 B. & Aid. 282 414, 415 
 
 Croft's case Str. 1120 152 
 
 Croft, R. v 9 C. & P. 219 71 
 
 Croft v. Stevens 6 H. & N. 570 607 
 
 Croliagan's case Cro. Car. 332 619 
 
 Croker v. S 49 Ark. 60 734 
 
 Crompton v. Bearcroft Bull. N. P. 113 698 
 
 Cross, R. v 1 Ld. Raym. 711 ; 3 Salk. 193 . ■ . 193,201 
 
 2 C. & P. 483 732, 733 
 
 3 Campb. 227 734, 758, 786 
 
 Crossley, R. v 10 A. & E. 132 199,418 
 
 7 T. R. 315 295, 333, 340, 353, 393 
 
 v. Lightowley 36 L. J. Ch. 584 733 
 
 Crosswell, P. v 3 Johns. Cas. 339 595 
 
 Crouch, R. v 1 Cox, 94 138 
 
 Crowhurst, R. i- 2 Ld. Raym. 1363 885 
 
 Crowther's case Cro. El. 654 419 
 
 Crumpton v. Newman 12 Ala. 199 880 
 
 Crunden, R. v 2 Campb. 89 194, 751 
 
 Cruse, R. v 2 Moo. C. C. R. 53 152, 154 
 
 Cruse, R. v 8 C. & P. 541 144, 151 
 
 8 C. & P. 545 147 
 
 Cullen, R. v 9 C. & P. 681 669 
 
 Cumberland v. R= 3 R. & Pul. 354 870 
 
 (Inhab.), R. v 6 T. R. 194 870, 878 
 
 Cummings, R. v 5 Mod. 179 200 
 
 Cundick, R. v D. & R. N. P. C 13 934 
 
 Cunningham, P. v 1 Denio, 624 758 
 
 , R. v Bell C. C. 72 12 
 
 Cunningham-Graham, R. v 16 Cox. 420 553, 570, 581 
 
 Cureton v. R 1 B. & S 208 . 950,962 
 
 Curgerwen, R. v 35 L. J. M. C. 58 660
 
 xxxviii Table of Cases. 
 
 Page 
 
 Curl, R. v 2 Str. 788 617, 618 
 
 Curnock, R. v 9 C. & P. 730 952 
 
 Curran v. Treleaven (1891) 2 Q. B. 545 550 
 
 Curry v. Waller 1 Bos. & Pull. 523 600 
 
 Curtis, R. v 15 Cox, 746 420 
 
 , S. v 107 N. S. 671 380 
 
 2 Dev. & Bat. 222 720 
 
 Curvan, R. v R. & M. C. C. R. 132 591 
 
 Curwood, R. v 3 Ad. & E. 815 758 
 
 Cutts, R. v 4 Cox, 455 353, 357 
 
 D. 
 
 Dade, R. v M. & R. C. C. R. 307 173, 174 
 
 Dale, R. v Dears. C. C. 37 422 
 
 Dalrymple v. Dalrymple .... 2 Hagg. 54 700 
 
 Daly.R. v 9 C. & P. 342 411 
 
 Danelly, R. v R. & R. 310 171 
 
 Dann, R. v R. & M. C. C. R. 424 47,50 
 
 Darby v. Ouseley 1 H. & N. 1 643 
 
 Davey, R. v 5 Esp. 217 733 
 
 Davidson v. Duncan 7 E. & B. 232 604 
 
 v. Phillips 9 Yerg. 93 722 
 
 Davies v. Duncan 43 L. J. C. P. 185 607 
 
 , R. v 1 F. & F. 69 128 
 
 3 C. & K. 328 140 
 
 6 Cox, 326 142 
 
 10 B. & C. 89 954, 962 
 
 5 T. R. 626 744 
 
 Davis v. Lowell 4 M. & W. 678 318 
 
 , R. v R. & R. 113 162 
 
 1 Leach, 271 193 
 
 Say. 133 200 
 
 7 C. & P. 785 951 
 
 1 Bott. 361 420, 884 
 
 8 C. & P. 759 954, 960 
 
 v. Stephenson 24 Q. B. D. 529 746 
 
 v. S 15 Ohio, 72 . . 146 
 
 14 Cox, 563 145 
 
 Davison, R. v 7 Cox, 158 58 
 
 v. Wilson 11 Q. B. 890 718 
 
 Davy v. Baker 5 Burr. 2471 456 
 
 Dawes v. Hawkins 8 C. B. (N. S.) 848 771 
 
 Dawkins v. Lord Rokeley 42 L. J. Q. B. 63 600 
 
 Day v. Bream 1 Barnard. 304 633,645 
 
 v. Robinson 1 Ad. & E. 554 632 
 
 Davton, S. v 53 Am. D. 270 381 
 
 Deacon, R. v R. & M. N. P. R. 27 366 
 
 Dean, R. v 12 M. & W. 39 281 
 
 Dean's case 1 Hale, 25 115 
 
 Deane, R. v 2 Q. B. D. 305 742 
 
 Deane v. Thomas M. & M. 361 712 
 
 De Beauvoir, R. v 7 C. & P. 17 366 401 
 
 De Berenger, R. » 3 M. & S. 67 . . . . 491,500,517,521,536 
 
 De Crespigny v. Wellesley .... 5 Bing. 392 598 
 
 Deeley, R. v R. & M. C. C. R. 303 713 
 
 Deer, R. v 1 L. & C. 240 158 
 
 De Kromme, R. v 17 Cox, 492 509 
 
 Delany v. Jones 4 Esp. 191 609 
 
 Dclaval, R. v 3 Burr. 1434 507 
 
 Delacroix v. Thevenot 2 Stark. 63 634 
 
 Delegal v. Highley 3 B. X. C. 950 601, 602 
 
 Deman, R. i- 2 Ld. Raym. 1221 343 
 
 Dennis, R. w 10 Times L R. 498 275 
 
 Dent, R, v 1 C. & K. 97 699 
 
 Denton, R. » 18 Q. B. 761 .205 
 
 34 L. J. M. C. 13 823, 824
 
 Table of Cases. xxxix 
 
 Page 
 
 D'Eon, R. v 1 Blac. R. 517 595 629 
 
 Depardo, R. v 1 Taunt. 29; R. & R. 134 ' 268 
 
 Derbyshire, R. v 3 B. & Ad. 147 867 
 
 E. B. & E. 69 796 
 
 2Q. B. 745 854 
 
 Desmond, R. v 11 Cox, 146 530 
 
 Dethick's case 1 Leon. 248 653 
 
 De Thoren v. Att.-Gen 1 Ap. Cas. 686 698 
 
 Devlin v. Brady 32 Barb. 518 11:; 
 
 Devon (Inhab.), R. v 4 B. & C. 670 798, 861, 870 
 
 Devonshire, R.v R. & M. N. P. R. 144 854 
 
 14 East, 477 870 
 
 5 B. & Ad. 383 866 
 
 Dewell v. Sanders Cro. Jac. 490 442 
 
 Devvhurst, R. v 5 B. & A. 405 651 
 
 Dewsnap, R. v 16 East, 196 731 759 
 
 D'Eyncourt, R. v 21 Q. B. D. 109 86 
 
 Dibden v. Swan 1 Esp. 28 607 
 
 Dickenson, R. v 1 Saund. 135 201 
 
 Dickeson v. Hilliard 43 L. J. Ex. 37 611 
 
 Dickinson v. Coward 1 B. & A. 679 714 
 
 Dicks, R.v MSS. Bayley, J 147 
 
 Digby's case Hutt. 131 665 
 
 Dillon, R.v 2 Chit. R. 314 726 
 
 14 Cox, 4 301, 387 
 
 Dimes v. Petley 15 Q. B. 276 755 843 
 
 Dingley, R.v 4 F. & F. 99 45 
 
 Dixon, R.v 6 C. & P. 601 405 
 
 3 M. & S. 11 203, 274 
 
 10 Mod. 335 151, 741 
 
 Dobree v. Napier 2 Bing. N. C. 781 23 
 
 Dobson, R.v 6 Q. B. 637 413 
 
 1 Cox, 251 851 
 
 Dod, R. v 2 Sess. Cas. 33 636 
 
 Doddridge, R. v 8 Cox, 335 953 
 
 Dodgson, R.v 9 A. & E. 704 417 
 
 Dodsworth, R. v 8 C. & P. 218 399 
 
 Doe v. Andrews 15 Q. B. 756 692 
 
 v. Bainbrigge 4 Cox, 454 137 
 
 v. Daly 8 Q. B. 934 721 
 
 . v. Fleming 4 Bing. 266 713 
 
 v. Grazebrook 4 Q. B. 406 692 
 
 Doggett v. Cattern 17 C. B. (N. S.) 669 745 
 
 Doherty, R.v 16 Cox, 306 144 
 
 Dolan, R.v Dears. C. C. 436 103 
 
 Donaldson, S. v 5 Vroom, 151 544 
 
 Donne v. Martyr 8 B. & C. 62 429 
 
 Donnison, R.v 4 B. & Ad. 698 639 
 
 Door, S. v Charl. 1 741 
 
 Doran, R. v 2 Moo. C. C. 37 324 
 
 Dorny, R. v 1 Ld. Raym. 210 726 
 
 Dorset (Justices), R.v 15 East, 594 863 
 
 Douglas, R. v 13 Q. B. 42 427 
 
 Douse, R.v 1 Ld. Raym. 672 201 
 
 Dowlin, R. v 5 T. R. 311 331, 353, 391 
 
 Peake N. P. C. 170 378 
 
 Downholland, R. v 2 Sess. C. 177 822 
 
 Downing, R. v 1 Den. C. C. 52 513 
 
 Downshire (Marchioness), R. v. . . 4 Ad. & E. 232 761, 810 
 
 (Marquis), R. v 4 Ad. & E. 698 758,776,781 
 
 Dowsell, R.v 6 C. & P. 398 957 
 
 Doyle v. O'Doherty C. & M. 418 599 
 
 Drake's case 1 Lewin, 25 691 
 
 Drake v. Foottitt 7 Q. B. D. 201 566 
 
 Dring, R.v D. & B. C. C. 329 150 
 
 Dripps, R.v 13 Cox, 25 52 
 
 Druitt, R.v 10 Cox, 593 547, 549, 550, 971 
 
 Drury, R.v 3 C. & K. 193 52 
 
 Du Bost v. Beresford 2 Campb. 511 595 
 
 Dudlev, R.v 14 Q. B. D. 560 64
 
 xl Table of Cases. 
 
 Page 
 
 Dudman, R. v 4 B. & C. 850 340 
 
 Dutlield, R. v 5 Cox, 404 629,531,533 970 
 
 Duffin, R. » R. &R. 365 '935 
 
 Duffy, R. v 2 Cox, 45 650 
 
 Dugdale, R. v 1 E. & B. 435; Dears. C. C. 64 . . . 198.752 
 
 Dukinfield, R. v 4 B. & S. 158 59,61^796 
 
 Duncan v. Louch 6 Q. B. 904 762, 771 
 
 , R. v 14 Cox, 771 ' 820 < 
 
 v. S 6 Humph. 148 160 
 
 v. Thwaitea 3 B. & C. 556 602, 643, 731 
 
 Duncombe's case Cro. Car. 366 802 
 
 Dunn, R. v 1 Dowl. & R. 10 336 
 
 1 C. & K. 730 341, 342 
 
 12 Q. B. 1026 66, 300, 398, 646 
 
 Dunning, R. v. ........ 5 Cox, 142 106 
 
 40 L. J. M. C. 58 332 
 
 L. R., 1 C. C. R. 290 344, 352 
 
 Dunston, R. v R. & M. N., P. R. 109 317,318 
 
 Durkins, R. v 2 Lew. 163 ' 106 
 
 Dwerryhouse, R. v 2 Cox, 291 104 
 
 Dykes, R. v 15 Cox, 771 ! . 146 
 
 Dysart Peerage case 6 Ap. Cas. 489 698 
 
 Dyson v. Mason 22 Q. B. D. 351 930 
 
 , R. v 7 C. & P. 305 119 143 
 
 E. 
 
 Eagleton, R. v Dears. C. C. 515 197 
 
 Eardisland, R. v. ....... 3 E. & B. 960 823, 824 
 
 2 Campb. 494 817 
 
 Earle v. Hopwood 9 C. B. (N. S.) 566 . . . 481 
 
 East v. Chapman M. & M. 46 602 
 
 East Hagbourne, R. v Bell C. C. 135 ' 783 
 
 Mark, R. v 11 Q. B. 877 765 
 
 Eastern Counties Rail'y v. Dorling . 5 C. B. (N. S.) 821 843 
 
 Eastman, C. v 1 Cush. 189 517, 522 
 
 Easton v. Richmond Highway Board 41 L. J. M. C. 25 ' 786 
 
 Eastrington, R. i- 5 Ad. & E. 765 . ! 816 
 
 Eastwood v. Miller L. R. 9 Q. B. 440 746 
 
 Eccles, R. v 1 Leach, 274 496 508 
 
 cited 13 East, 230 ' 516 
 
 Ecclesfield, R. v 1B.& Aid. 348 799, 801, 816, 855 
 
 1 Stark. R. 393 816 
 
 Edgecombe v. Rodd 5 East, 294 . 412 
 
 Edmondson v. Stephenson .... Bull. N. P. 8 ........... 607 
 
 Edmonton, R. v . 1 M. & Rob. 24 764,806 
 
 Cald. 435 692 
 
 Edwards v. Buchanan 3 B. &Ad. 788 31 
 
 v. Ferris 7 C. & P. 542 .' 898 
 
 . R - '• MSS 294, 487 
 
 MSS. Sum 197 
 
 3 Salk. 27 202 
 
 8 Mod. 320 503, 525, 527 
 
 R. & R. 283 690 
 
 '" • S 49 Ala. 334 381 
 
 ->^ v 32 Mo. 548 657 
 
 Egerly, R. v 3 Sa lk. 183 786 
 
 Ehlershaw, R. v 3 C. & P. 396 117 
 
 Elkms, R. v 4 Burr. 2129 .... 882 
 
 ^7— "£ S 3 Humph. 543 758 
 
 f: ll0t ' R - '" 1 L. & C. 103 750 
 
 Elliott v. S. Devon R. Co 2Exch. R, 725 805 
 
 — —> s - '■' 11 N. H. 540 725 
 
 E ha s case Cro. Jac. 633 726 
 
 Ellis v. London & S. W. R. Co. . . . 2 H. & N. 424 755 
 
 ' B - v C. & M. 564 ...'.'. '. [ ' 399, 400, 457 
 
 2 Salk. 595 557
 
 Table of Cases. xli 
 
 Page 
 
 Ellis R. v R. & M. C. C. R, 175 100 
 
 v. Ruddle 2 Lev. 151 435 
 
 , S. v 4 Vroora, 102 443 
 
 v. Sheffield Gas Consumers' Co. 2 E. & B. 767 7*9 
 
 Else, R. v R. &R. 42 242 
 
 Elsy v. Mawdit Styles, 226 66 
 
 Elwood v. Bullock 6 Q. B. 383 769, 791 
 
 Ely, R. v 15 Q. B. 827 860, 864, 869 
 
 1 Lord Raym. 35 882 
 
 Emden, R. u 9 East, 437 47, 367, 382 
 
 Emmons, R, v 2 M. & Rob. 279 918 
 
 Empson v. Bathurst Hutt. 52 426 
 
 Esdaile, R. v 1 F. & F. 33 & 213 508, 533, 511 
 
 Esop, R. v 7 C. & P. 456 160 
 
 Essex, R. v D. & B. 369 34 
 
 Essex (County), R. v T. Raym. 384 876 
 
 Justices, R. v 5 B. & C. 431 778 
 
 Estrington, R. v 5 A. & E. 765 810 
 
 Evans o. Botterill 8 Law T. 272 948 
 
 17 Cox, 37 . . ; 301 
 
 7 Cox, 151 187 
 
 Evans's case 1 East, P. C. 798 267 
 
 Everett, R. i? 8 B. & C. 114; 2 M. & R. 35 288 
 
 Ewington, R. v C. & M. 319 350 
 
 2 M. C. C. R. 223 382 
 
 Exeter, Treasury of, R. v 5 M. & Ry. 167 100 
 
 Eyre, R. v 11 Cox, 162 24 
 
 Eyres, Roy v 1 Sid. 307 425 
 
 Eyston and Studde's case .... Plowd. 465 a 117 
 
 Eyton, R. v 3 E. & B. 390 823 
 
 Fabian's case 1 East, P. C. 194 ; Kel. 39 , 225 
 
 Fairburn, R. v Staff. Summer Assizes, 1850 334 
 
 Fairie, R. v 8 E. & B. 486 734 
 
 Fairlie, R. v 9 Cox, 209 296 
 
 Fairman v. Ives 5 B. & A. 642 610 
 
 Faith v. S 32 Tex. 373 381 
 
 Fallon, R. v 1 L. & C. 217 182 
 
 Fallowes v. Taylor 7 T. R. 475 413 
 
 Fanning, R. u 10 Cox, 411 663,664 
 
 Farewell, R. v 2 Str. 1209 819 
 
 Farie, S. v 3 Ohio St. 159 725 
 
 Farrell, R. v 9 Cox, 446 749 
 
 Farrer v. Close 38 L. J. M. C. 132 544 971 
 
 ■, 11. v 35 L. J. M. C. 211 807, 829 
 
 Farrow, R. v D. & B. 164 173 
 
 Faulkner's case 1 Saund. 250 201, 202 
 
 Fearnley, R. v 1 T. R. 316 429, 884, 885 
 
 Fearshire, R. v 1 Leach, C. C. 202 302 
 
 Featherstone, R. v Dears. C. C. 369 157 
 
 Feist, R. v D. & B. C. C. 590 941 
 
 Fell r. Knight 8 M. & W. 269 740 
 
 , R. v 1 Ld. Raym. 424 .... 891, 895, 896, 897 
 
 Felter, S. v 25 Iowa, 67 138 
 
 Fentiman, Ex parte 2 Ad. & E. 127 417 
 
 Ferrall, R. v 2 Den. C. C. 51 884 
 
 Ferrand v. Milligan 7 Q. B. 730 767 
 
 Ferrers' (Lord) case 19 St. Tr. 947 120, 1?.9 
 
 Fielden, R. v 3 B. & Ad. 657 742 
 
 Fieldhouse, R. v Cowp. 323 727 
 
 Fielding, R.k 2 C. & K. 621 951 
 
 Fifehead, R. v 3 Cox, 59 823 
 
 Findon v. Parker 11 M. & W. 675 480 
 
 Finney v. Beeslev 20 L. J. Q. B. 396 299 
 
 , R. v 2 C. & K. 774 925
 
 xlii Table of Cases. 
 
 Page 
 
 Finucane, R. a 5 C. & P. 551 962 
 
 Fisher v. Clement 10 B. & C. 472 643 
 
 v. Dudding 9 Dowl. P. C. 872 385 
 
 v. Prowse 2 B. & S. 770 769 
 
 R. v 8 C. & P. 612 805 
 
 2 Campb. 563 602 
 
 Fitziohn v. Mackinder 9 C. B. (N. S.) 505, 599 
 
 Fitzpatrick, R. v R. & R. 512 925 
 
 Fivaz r. Nicholls 2 C. B. 501 412 
 
 Flaherty, R. v 2 C. & K. 782 714 
 
 Flanney's case 1 Lew. 133 103 
 
 Fleet \l.v IB. & Al. 379 602 
 
 Flecknow, R. v 1 Burr. 465 783, 803 
 
 Fletcher's case 1 Leach, 23 289 
 
 Fletcher v. Braddyll 641 
 
 v. Calthrop 6 Q. B. 880 950 
 
 v. Ingram 5 Mod. 127 429 
 
 Fley R. v 40 L. J. M. C. 128 304,306 
 
 , S. v Brev. 338 161 
 
 Flight v. Leman 4 Q. B. 883 478- 
 
 F lint v. Pike 4 B. & C. 473 601 
 
 Florey v. Florey 24 Ala. 241 138 
 
 Flower, R. v 7 D. P. C. 665 758 
 
 Flvnn, S. v 28 Iowa, 26 510 
 
 Fobbing, Commrs. of, R. v 11 Ap. Cas. 449 774 
 
 Foley, C.v 99 Mass. 497 752 
 
 Forbes v. Cockrane 2 B & C. 467 23 
 
 Ford v. Elliott 4 Exch. R. 78 533 
 
 v. Lacy 7 H. & N. 151 843 
 
 Foster's case 11 Co. 62 152 
 
 Foster, C.v 114 Mass. 311 166 
 
 , R. v R. & R. 459 295 
 
 7 C. & P. 494, 495 230, 231 
 
 Dears. C. C. 456 242 
 
 Fowle, R. v 4 C. & P. 592 360, 518 
 
 Fowler, R. v 1 Ad. & E. 836 825 
 
 1 East P. C. 461 • 502 
 
 v. Sanders Cro. Jac. 446 731, 758 
 
 Fox v. Gaunt 3 B. & Ad. 798 591 
 
 , R. v 2 Q. B. 247 942 
 
 10 Cox, 502 68 
 
 16 Cox, 166 459 
 
 v.S 5 How. (N. S.) 410 233 
 
 Foxley's case 6 Mod. 213 152 
 
 Frances, R. v 4 Cox, 57 137 
 
 Franceys, R. v 2 Ad. & E. 49 639 
 
 Frank's case 2 Leach, 64 240 
 
 Frankland v. Nicholson 3 M. & S. 261 689 
 
 Franklin's case 1 Leach, 255 ; Cald. 244 289 
 
 Franklin, R.u 9 St. Tri. 255 622 
 
 Eraser, R. v R. & M. C. C. R. 419 665 
 
 Fray v. Fray 34 L. J. C. P. 45 626,646 
 
 Frederick, R. v 2 Str. 1095 528 
 
 Freel v. S 21 Ark. 212 146 
 
 Freeman v. Reed 4 B. & S. 174 800 
 
 Freeport, S. v 43 Maine, 198 842 
 
 French, R. v Russ. & Ry. 517 36 
 
 4 Q. B. D. 507 773 
 
 8 Cox, 252 7 
 
 Fretwell, R. v 1 L. & C. 161 170, 186 
 
 Friel, R. v 17 Cox, 325 45 
 
 Frost, R. v Dears. C. C. 474 61 
 
 9 C. &. P. 129 535 
 
 Fry, R.v 2 Moo. & Rob. 42 955 
 
 — v. Whittle 6 Exch. R. 411 811 
 
 Fryer v. Gathercole 4 Exch. 262 634 
 
 Fuidge, R. v L. & C. 390 3 
 
 Fullarton, R. v 6 Cox, 194 61 
 
 Fuller's case 2 Leach, 790 259 
 
 R. & R. 308 199, 234
 
 Table of Cases. xliii 
 
 Page 
 
 Fuller, C v 8 Met. 313 207 
 
 , R. v 1 Ld. Raym. 509 303 
 
 Furguson, S. r 76 N. C. 197 419 
 
 Furlong, S. v 5 Wheat. 164 260 
 
 Fursey, R. v 6 C. & P. 81 573 
 
 G. 
 
 Gadbury, R. v 8 C. & P. 676 72, 238 
 
 Gahajas v.T 1 Parker, 378 659 
 
 Gainer, R. v 7 C. & P. 231 960 
 
 Gallant, R. r 1 F. & F. 517 9 
 
 Galiaway v. Maries 8 Q. B. D. 275 746 
 
 Galloway, R. v R. & M. C. C. R. 234 170 
 
 Gamlen, R. v 1 F. & F. 90 145 
 
 Gamlingay, R. v 3 T. R. 513 805,811 
 
 Gandy v. Jubber 5 B. & S. 78 756 
 
 Gardener v. Slade 13 Q. B. 796 607 
 
 Gardiner, R. v MSS. Bayley, J 205, 308 
 
 2 M. C. C. R. 95 349, 371, 395 
 
 , S. v 5 Mason, 402 260 
 
 Gardner, R. v 5 Cox, 140 99 
 
 Garland, R. v 5 Cox, 165 734 
 
 11 Cox, 222 67 
 
 Garnhanj, R. v 8 Cox, 451 60,950 
 
 Garoutt, P. v 17 Mich. 9 138 
 
 Garret, R. v 6 C. & P. 369 947 
 
 Garvey, R. v 1 Cox, 111 362 
 
 16 Cox, 252 458 
 
 Gash, R. v 1 Stark. R. 41 885 
 
 1 Stark. R. 445 819 
 
 Gate Fulford, R. v D. & B. C. C. 74 784, 800 
 
 Gates, S. v 17 N. H. 373 294 
 
 Gathercole's case 2 Lew. 255 596, 613, 617 
 
 Gathercole v. Miall 15 M. & W. 319 607 
 
 Gaylor, R. v D. & B. C. C. 288 173, 186 
 
 Gazard, R. v 8 C. & P. 595 377 
 
 Gebney, C.v 2 Allen, 150 553 
 
 Genge, R. v Cowp. 13 428 
 
 George, R. v -3 Salk. 188 204 
 
 Gerring v. Barfield 16 C. B. (N. S.) 597 786 
 
 Gerrish, R. v 2 M. & Bob. 219 209 
 
 Gibbon, R. v 1 Leach, 98 910 
 
 L. & C. 109 316, 319 
 
 Gibbs v. Pike 8 M. & W. 223 540 
 
 , R. v 1 East, 183 433, 443 
 
 Gibson v. Mayor of Preston .... 39 L. J. B. B. 131 793, 873 
 
 v. Lawson (1891) 2 Q. B. 545 548 
 
 Gilbrass, R. v 7 C. & P. 444 106 
 
 Gilliam, R v 6 T. R. 267 428 
 
 Gilkes, R. v 3 C. & P. 52 885, 888 
 
 8 B. & C. 439 888 
 
 Gill, R. v 1 Str. 190 786 
 
 2 B. & A. 204 514, 516 
 
 Gilles, R. v R. & R. 366 935 
 
 Gilmore, R. v 15 Cox, 85 47 
 
 Gilpin v. Fowler 9 Ex. R, 615 612 
 
 Gisson, R. v 2 C. & K. 781 51 
 
 Glamorgan (Inhab.), R. o 2 East, 356 816, 854, 863 
 
 Glamorganshire (Justices), R. v. . . 5 T. R. 283 862 
 
 Glass's case 3 Salk. 350 201 
 
 Glassie, R. v 7 Cox, 1 157 
 
 Gloucestershire, R. v C. & M. 506 853 
 
 Gloucestershire (Justices') R. v. . . 4 Ad. & E. 689 5 
 
 Glover, R. v ' 1 B. & Ad. 482 779 
 
 Glusburne Bridge case 5 Burr. 2594 854, 863 
 
 Goadby, R. v 2 C. & K. 782 51
 
 xliv Table of Cases. 
 
 Page 
 
 Godbolt's case 4 Leon. 33 435 
 
 Goddard v. Smith 6 Mod. 262 490 
 
 R. r 2 Lord Raym. 922 50 
 
 ' 2 F. & F. 361 320 
 
 Goding, C. v 3 Met. 130 741 
 
 Godolphin v. Tudor Comb. 350 430 
 
 Godsey, S. v 13 Ire. 348 725 
 
 Godson v. Home 3 Moore, 223 644 
 
 Gogarty v. R 3 Cox, 300 577 
 
 Goldsmith, R. v 42 L. J. M. C. 94 38 
 
 12 Cox, 594 86, 89 
 
 Gompertz v. Kensit 41 L. J. Ch. 382 689 
 
 , R. v 9 Q. B. 824 514, 518, 538, 542, 543 
 
 Good, R. v 1C. &K. 185 159 
 
 Goode, 11. v 7 Ad. & E. 536 142 
 
 Goodenough, R. v 2 Lord Raym. 1036 729 
 
 Goodfellow, R. v 1 Den. C. C. 81 954 
 
 C. & M. 569 332, 349, 355, 391 
 
 Gooding, R. v C. & M. 297 714 
 
 Goodman, R. v MSS. C. S. G 72 
 
 1 F. & F. 502 400 
 
 Goodnow, C. v 117 Mass. 114 785 
 
 Goodwin, R. v 10 Cox, 534 237 
 
 Gordon (Lord G.), R. v 2 Dougl. 571 581 
 
 MSS 629 
 
 C. &M. 410 385 
 
 R. & R. 48 665 
 
 Gordon, W. & T., R. v 1 Leach, 515 169, 171 
 
 Gotley, R. v R. & R. 84 415 
 
 Gough, R. v Dougl. 791 333 
 
 Gould, R. r 9 C. & P. 364 47, 51 
 
 Gover, R. v 9 Cox, 282 227 
 
 Graeme v. Wroughton 11 Excli. R. 146 439 
 
 Graham's case 2 Lew. 97 69S 
 
 Grand Junction R. Co., R. v. ... 11 A. & E. 128 « 764 
 
 Grant, R, v 5 B. & Ad. 1081 645 
 
 Gray, R. v 10 Cox 184 602 
 
 Gray's case 1 Leach, 343 ... 290 
 
 Great Broughton, R. v 2 M. & Rob. 444 824 
 
 Great Canfield, R. v 6 Esp. 136 810 
 
 Great N. R. Co., R. v 2 Q. B. 315 874 
 
 Great N. E. R. Co., R. v 9 Q. B. 315 793, 874 
 
 Great Works Milling Co, S. v. . . . 20 Me. 41 874 
 
 Green, R. v. . . D. & B. 113 46 
 
 Greenacre, R. v 8 C. & P. 35 172 
 
 Greenhow (Inhab. of), R. » 1 Q. B. D. 703 775 
 
 Greeniff, R. v 1 Leach, 363 910 
 
 Greenwich Board of Works v. Maud- 
 
 sley 39 L. J. Q. B. 205 764 
 
 Greenwood. R. v 2 Den. C. C. 453 244 
 
 Gregory v. Duke of Brunswick . . M. & G. 953 501,556 
 
 — v. R 15 Q. B. 957 627,631,647 
 
 , R. v 8 Q. B. 508 644 
 
 5 B. & Ad. 555 199, 753 
 
 15 Q. B. 957, 974 85 
 
 10 Cox, 459 172 
 
 L. R. 1 C. C. R. 77 181, 193, 201 
 
 v.S 26 Ohio, 510 160 
 
 v. Tavernor 6 C. & P. 280 743 
 
 v. Tuffs 6 C. & P. 271 743 
 
 Grell v. Levy . . . . 16 C. B. (N. S.) 73 480 
 
 Grey, R. v 4 F. & F. 74 752 
 
 — (Lord),R. v 3 St. Tr. 519 507,534 
 
 Grice, R. v 7 C. & P. 803 955 
 
 Griepe, R. v 1 Ld. Ravm. 250 308, 363 
 
 Grier v. S 13 Mo. 382 101 
 
 Griesly, R. v 1 Ventr. 4 785 
 
 Griffin v. Brown 2 Pick. 304 894 
 
 o. Coleman 4 H. &N. 265 592 
 
 , R. v Holt on Libel, 239 628
 
 Table of Cases. xlv 
 
 Page 
 
 Griffin, R. v 14 Cox, 308 664 699 
 
 Griffith, R. v 3 Salk. 169 726 
 
 Grindall, R. v 2 C. & P. 503 330 
 
 Grindley, R. v MSS Ill 
 
 Grinnell v. Wells Gloucester Spr. Ass. 1843 31*3 
 
 Groombridge, R. v 7 C. & P. 582 117 
 
 Grove, R. v 5 Mod. 18 490 
 
 Guernsey, R. v 1 F. & F. 394 430 
 
 Guildford case 1 O'M. & IT. 15 44', 
 
 Gully v. Smith 12 Q. B. U. 121 786 
 
 Gulston, R. v 2 Lord Raym. 1210 583 
 
 Gumble, R. r L R. 2 C. C. ii. 1 . . 58 
 
 Gurney's case 3 Just. 166 294 
 
 Gurney, R. v 11 Cox, 414 500,529 
 
 Gutch, R. r Moo. & M. 433 637 
 
 Gutt, S.v 13 Minn. 341 139 
 
 ±1. 
 
 Hackney Board, R. v 42 L. J. M. C. 151 807 
 
 Hackney v. S 8 Ired. 494 731 
 
 Hadtield's case Collis. 480 124 
 
 Hague, R. v 9 Cox, 412 460 
 
 Hailey, R. v 1 C. & P. 258 388, 393 
 
 , S. v 2 Strob. 73 880 
 
 Haines, R. v 5 Cox, 114 107 
 
 Haire v. Wilson 9 B. & C. 643 043 
 
 Hake, R. v cited 4 M. & R. 483 728,729 
 
 Hale, 11. v (1891) 1 Q. B. 747 202 
 
 , S. v 3 Vroom, 158 741 
 
 Hall >•. Crawford Batem. H. A. 23 766 
 
 v. Knox 4 B. & S. 515 948 
 
 ,R.» (1893) 1 Q. B. 747 198 
 
 8 C. & P. 358 390 
 
 1 F. & F- 33 508 
 
 1 Str. 416 635 
 
 1 B. & C. 123 429 
 
 1 Mod. 76 755 
 
 , U. S. v 44 Fed. Rep. 864 368 
 
 Hallett, 11. v 2 Den. C. C. 237 295 
 
 Halsell's case Nov. 90 810 
 
 Haly, R. v 1 Crawf. & D. 199 381 
 
 Hamblin v. Shelton 3 F. & F. 133 713 
 
 Hamilton, R. v 7 C. & P. 448 540 
 
 v. St.George's, Hanover-square, 
 
 Vestry 43 L. J. M. C. 41 770 
 
 Hamlyn, R. v 4 Campb. 379 4_'i> 
 
 Hammersmith, R. v 1 Stark. R. 357 813,819 
 
 Hammond's case 1 Leach, 447 152 
 
 Hammond v. Brewer 1 Burr. 376 805.811 
 
 v. Chitty Q. B., E. T. 1846 394 
 
 , R. v 2 Esp. 718 535 
 
 Str. 44 810 
 
 Hamp, R. v 6 Cox, 167 499, 527 
 
 Hampton's case Greenw. Coll. St. 143 27 
 
 Haimvorth (Inhab.), R. v 2 Str. 900 878 
 
 Hanberries' case Cro. El. 661 87 
 
 Hancock v. York, Newcastle, & Ber- 
 wick Rail. Co 10 C. B. 348 848 
 
 Handcock v. Baker 2 Bos. & P. 265 582 
 
 Handley, R. v 5 C. & P. 565 963 
 
 Hankey, R. v 1 Burr. 316 594 
 
 Hann, R. v 3 Burr. 1716 41S 
 
 Hannon, R. v 6 Mod. 311 489 
 
 Hannum. R. v 1 Yeate, 71 425 
 
 Hansill, R. v 3 Cox, 597 178,186,190 
 
 Hanson, R. v 2 C. & K. 912 98, 204, 276 
 
 Hapsjood, R. v L. R. 1 C. C. R. 221 03
 
 xlvi Table of Cases. 
 
 Page 
 
 Harber v. Rand 9 Price, 58 781 
 
 Harborne, R. v 2 A. & E. 540 661 
 
 Hardbeck v. S 10 Ind. 459 '553 
 
 llardeastle v. The S. Yorkshire R. & 
 
 River Dun Co 4 H. & N. 67 789 
 
 Hardey, R. v 14 Q. B. 529 413,414 
 
 Harding v. Greening 8 Taunt. 42 ' 637 
 
 r. Stokes 2 M. & W. 233 .'.'..'. 455 
 
 Hardwicke, R. v 1 Sid. 282 489 
 
 Hardy, R. v 24 St. Tr. 129 '. '. ' 535 
 
 Hare, R. r 13 Cox, 174 376 
 
 Hargreave v. Spink (1892) 1 Q. B. 25 89 
 
 Harlan v. P 1 Dougl. 207 207 
 
 Harland, R. v 8 Ad. & E. 826 728 
 
 Harman v. Delany 2 Str. 898 627 
 
 Ilannond v. Pearson 2 Esp. 675 .' 848 
 
 Harper v. Cliarlesworth 4 B. & C. 574 \ 765 
 
 , v.S 8 Humph. 93 '..'.'. 233 
 
 Harpur, R. v 5 Mod. 96 429 
 
 Harrill v. S 29 Miss. 702 ! ! 176 
 
 Harring v. Walrond 2 Cli. Ca. 110 751 
 
 Harrington v. P 6 Barb. 607 725 
 
 , R.v 5 Cox, 231 169 
 
 Harris's case Noy. 128 . 87 
 
 Harris v. Brisco 17 Q. B. D. 504 ' ' . 481 
 
 r. James 45 L. J. Q. B. 545 757 
 
 v. Thompson 13 C. B. 333 612 
 
 . R- v 4 T. R. 202 ; 2 Leach, 549 . 200, 269, 333, 884 
 
 1 L. R. C. C. 282 748 
 
 1 Lord Raym. 482 730 
 
 3 Salk. 313 730 
 
 1 Leach, 135 212 
 
 Dears. C. C. 344 61 
 
 10 Cox, 352 754 
 
 5 B. & A. 926 363, 372, 373 
 
 R. & M. C. C. R. 338 390 
 
 7C. &P. 253 398 
 
 12 Law T. 303 .945 
 
 C. & M. 661 567 
 
 Harrison's case 1 Leach, 47 . 155 
 
 2 Lew. 118 ' -242 
 
 Harrison v. Bush 5 E. & B. 344 611 
 
 v. Parker 6 East, 1 54 864 
 
 , R. v 9 Cox, 503 ' 395 
 
 3 Keb. 841 .. 618 
 
 Harrow, R.v 4 Burr. 2091 805 
 
 Hart v. Mavor of Albany 9 Wend. 571 .... 755 
 
 , R. v 30 How. St. Tr. 1131 ....'.'.'. 66, 308 
 
 10 East, 94 639 
 
 1 Leach, 145 640 
 
 2 Burn's Ecc. L. 779 611 
 
 v. Von. Gumpack 43 L. J. P. C. 25 612 
 
 Hartford, R. v Cowp. Ill 811 
 
 Hartley v. Hooker Cowp. 524 ' 201 
 
 Harvey v. Bridges 14 M. & W. 437 . . . ... . . . . 718 
 
 v. Farnie 8 Ap. Cas. 43 663 
 
 v. French 2 Tyrw. 585; 1 C. & M. 11 632 
 
 . R- » 2 B. & C. 257 620, 643, Add. 
 
 L. R. 1 C. C. R. 284 215, 220, 227 
 
 ~ ■ 8 Cox, 99 360, 377 
 
 Ilasen v. C 11 Harris, 366 491 
 
 Haskell, S. v 4 Wash. 102 145 2(10 
 
 Haslemere, R. v 7 Law T. 382 . . ' 8'>3 
 
 Haslingtield (Inhab.), R. v 2 M. & S. 558 . ' 806 
 
 Hassall, R.v 2 C. & P. 434 ....'.'..'.' '. 159 
 
 Hastings' case 1 O. M. & H. 219 . . . ' 416 
 
 Hastings, R. v R. & M. C. C. R. 82 . . . . .' ' .' ' 264 
 
 Haswell, R. v Russ. & Ry. 458 ... ' 901 903 
 
 Hattield, R. v C. T. H. 315 . . . . ' ' 762 
 
 4 Ad. &E. 156 '.'.'. '782,783
 
 Table of Cases. xlvii 
 
 Page 
 
 "Ilartfield, R. v 4 B. & Aid. 75 801 
 
 Ilaughton, R. v 1 E. & B. 501 49, 818 
 
 Hawdon, R. v 3 P. & D. 44 651 
 
 Hawes, R. v 1 Den. C. C. 270 694 
 
 Hawkens v. S 13 Geo. 322 587 
 
 Hawkhurst, R. v 7 Law T. 268 761, 766 
 
 Hawkins v. Sanders 45 Mich. 491 785 
 
 Hawthorn v. Hammond 1 C. & K. 404 740 
 
 Havdon's case 4 Co. 42 171 
 
 Ilaydon, R. v 3 Burr. 1387 455 
 
 Hayes r. P 25 N. Y. 390 659 
 
 ,R.v 2 Cox, 68 ; 1 Cox, 362 244 
 
 Hayman, R. v Moo. & M. 401 874, 877 
 
 llaynes, R. v 4 M. & S. 214 202 
 
 1 F. & F. 666 135 
 
 R. & M. N. P. R. 298 367 
 
 Hays v. Bryant 1 II. Bl. 253 420 
 
 Hayward, R. v Cro. Eliz. 148 750 
 
 2 C. & K. 234 104 
 
 , S. v 1 N. & M. 546 368 
 
 Ueage, R. v 2 Q. B. 128 801 
 
 Heane, R. v 33 L. J. M. C. 115 2,3,297 
 
 Heanor, R. v 6 Q. B. 745 807, 822 
 
 Heath v. Overseers of Weaverham . (1894) 2 Q. B. 108 804 
 
 , R. v R. & R. 184 198 
 
 v. Stowell 12 A. & E. 719 009 
 
 Heaton, R. v 3 F. & F. 819 660 
 
 Heber, R. v 2 Barn. 101 303 
 
 Hedgecock, R. v 4 Ch. Cr. Law, 530 50 
 
 Hedges, R. v 3 C. & P. 410 247 
 
 Heed, S. v 57 Mo. 252 368 
 
 Heeson, R. v 14 Cox, 40 52 
 
 Hein, S. v 50 Mo. 362 419 
 
 Helier v. The Hundred of Benhurst . Cro. Car. 211 327 
 
 Hemmings v. Gasson E. B. & E. 346 644 
 
 Hemp, R. v 5 C. & P. 468 393 
 
 Henderson v. Broomhead .... 4 H. & N. 569 599 
 
 , R. v 2 M. C. C. R. 192 42- 
 
 Hendon, R. v 4 B. & Ad. 628 855, 873 
 
 Hendricks v. S 26 Ind. 493 368 
 
 Henley, R. v 2 Cox, 334 814 
 
 Henn's case Sir W. Jo. 296 802 
 
 Henslow v. Fawcett 3 A. & E. 51 ; 4 N. & M. 592 455 
 
 Henson, R. ?• Dears. C. C. 24 275 
 
 Henwood v. Harrison 41 L. J. C. P. 206 604, 605, 609 
 
 Hepper, 11. v R. & M. N. P. R. 210 ... . 362, 366, 367 
 
 Herbert, R. v 1 East, P. C. 461 418, 502 
 
 Hermann, R. v 4 Q. B. D. 284 209 
 
 Heme, R. v cited 1 Str. 195 514 
 
 Herriott v. Stuart 1 Esp. 437 606 
 
 Hervey, 11. v 44 L. J. M. C. 1 777, 779 
 
 Hestcott's case 1 Salk. 330 425 
 
 Hester, R. v 4 Dowl. P. R. 589 946 
 
 Hewins, II. v 9 C. & P. 786 53, 355 
 
 Hewitt, R. v 5 Cox, 162 967 
 
 Heydon, R. v 3 Burr. 1359 455 
 
 Ileytesbury, R. v 8 Law T. 315 822,823 
 
 Hibbert, R. v 13 Cox, 82 547, 966 
 
 Hicklin, R. v 37 L. J. M. C. 89 752 
 
 Hickling, R. v 7 Q. B. 880 798, 823 
 
 Hicks's case r Hob. 215 593 
 
 Higgins's case 2 East, R. 5 195, 196, 197, 444 
 
 Higgins, R. v 4 C. & P. 247 426 
 
 Higginson, R. v 2 Burr. 1233 742 
 
 1 C. & K 129 128 
 
 Higgs,R. v 10 Cox, 527 956,960 
 
 High Halden, R. v 1 F. & F. 678 814 
 
 llilbers, R. v 2 Chitty Rep. 163 500 
 
 Hill, R. v Burn's, J., Escape III 891 
 
 2 Den. C. C. 254 61 
 
 Hillary v. Gay 6 C. & P. 284 718
 
 xlviii Table of Cases. 
 
 Page 
 
 Hilton v. Eckersley 6 E. & S. 47 549, 971 
 
 K ,. .... Bell C. C. 20 69,71,165 
 
 ' s v .... 3 Rich. 434 059 
 
 Hind. R. v R. &R. 253 674 
 
 Hirst v. Halifax Board of Health . . 40 L. J. M. C. 43 796- 
 
 v. Molesbury L. R. 6 Q. B. 130 754 
 
 Hoare R u ' 6 M. & S. 267 720 
 
 ■ w. Silverlock 9 C. B. 20 601, 631 
 
 Hodges, R. v 8 C. &P. 195 143 
 
 Hodgkiss, R. v 39 L. J. M. C. 14 29G, 366 
 
 Hodgson, K. v 1 Leach, 6 168 
 
 1 Cox, 43 102 
 
 v Scarlett 1 B. & A. 232 598, 001 
 
 Hodnett, R. v 1 T. R. 96 092 
 
 Hogan R. v 2 Den. C. C. 277 203 
 
 Holbrook, R. v 3 Q. B. D. 60; 4 Q. B. D. 46 . . . 626,049 
 
 Holcroft, R. v 4 Co. 46 b 42 
 
 Ilolden, R. v -12 Cox, 166 311 
 
 Hole v. Barlow 4 C. B. (N. S.) 334 732 
 
 • v. Sittingbourne and Sheerness 
 
 Rail. Co 6 H. & N. 488 790, 884 
 
 Holiday v. Hicks Cro. Eliz. 661 87 
 
 Holland R v 5 T. R. 607 416, 421, 423, 885 
 
 ' 1 T. R. 692 . 418 
 
 Hollingberry, R. v 4 B. & C. 329 495,541,543 
 
 Hollis R v 2 Stark. R. 536 888 
 
 Holloway,R.« 17 Q. B. 317 . 895,911,912 
 
 Holmes v. Bellingham 7 C. B. (N. S.) 329 763 
 
 R r Dears. C. C. 207 37, 195, 748, 756 
 
 ,' v. Simmons L. R. 1 P. & M. 523 691 
 
 Holrovd, R. v 2 M. & Rob. 339 200 
 
 Holt.it. v 5T. R. 430 642,645 
 
 Homer v. Taunton 5 H. & N. 661 631 
 
 Hook, R. v D. & B. 606 374, 376 
 
 Hopkins v. Prescott 4 C. B. 578 439 
 
 Horley, R. v 8 Law T. 382 795 
 
 Horn v. Noel 1 Campb. 61 712 
 
 R. v 15 Cox, 205 67 
 
 Hornby v. Close 36 L. J. M. C. 43 971 
 
 ., R. v 1 C. & K. 305 163 
 
 Home v. Lord Bentinck 4 Moore, 563 599 
 
 R. v 2 Cowp. 672 365 
 
 4 Cox, 263 192, 924, 925 
 
 Home Tooke's Case 25 St. Tr. 1 535, 539 
 
 v. Liddiard Rep. by Dr. Croke 692 
 
 , R. v 2 B. & Ad. 150 779 
 
 Hornsby v. Raggett (1892) 1 Q. B. 20 746 
 
 Hornsea. R. v Dears. C. C. 291 103, 774, 775 
 
 Hornsey, R. v Carth. 213 814 
 
 lb. main v. East India Company . . 1 T. R. 645 927 
 
 Hounsell v. Smyth 7 C. B. (N. S.) 731 789 
 
 How, R. r 2 Str. 699 943 
 
 Howard, R. w 1 M. & Rob. 187 380 
 
 Howell, R. v 4 F. & F. 160 508 
 
 9 C. & P. 437 162, 168, 566, 508 
 
 3 Keb. 510 742 
 
 Hube, R. v 5 T. R. 542 ; Peake, R. 131 . . . . 665, 657 
 
 Hucks, R. v 1 Stark. 521 333,337 
 
 Hudson, R. v 2 Str. 909 764,800 
 
 Bell C. C. 263 506, 538, 542, 931 
 
 1 F. & F. 56 395 
 
 Hughes v. Marshall 2 Tyrw. 134 ; 2 C. & J. 118 443 
 
 — . — , R. v 4 C. & P. 373 584 
 
 1 C. & K. 519 300, 301, 373 
 
 MSS. & 2 Lew. 229 153 
 
 M. & M. 178 555 
 
 Bell C. C 242 ISO, 187 
 
 D. & B. C. C. 248 305 
 
 Hughes, S.v 72 X. C. 25 787 
 
 Hull, R. r 2F. &F. 16 949 
 
 Hunt v. Massey 5B.& Ad. 903 716
 
 Table of Cases. xhx 
 
 Page 
 
 Hunt, R. v 3 B. & Aid. 500 535, 571, 584 
 
 3 Stark. N. P. C. 76 570 
 
 3 Cox, 215 577 
 
 1 Cox, 177 555, 587 
 
 10 Q. B. 925 37 
 
 8 C. & P. 642 510 
 
 2 Campb. 583 642 
 
 v. Goodlake 43 L. J. C. P. 54 631 
 
 Hunter, R. v 3 C. & P. 591 103 
 
 Huntingtower (Lord) v. Gardiner . . 1 B. & C. 297 450 
 
 Hurrell, R. v 3 F. & F. 271 387 
 
 Hurse, R. v 2 M. & Rob 360 243 
 
 Hutchinson's case 1 Leach, 342 288, 290 
 
 Hutchinson, R. v 3 Keb. 785 42, 52 
 
 Hyde v. Middlesex 2 Gray, 267 785 
 
 I. 
 
 Ilderton v. Ilderton 2 H. Bl. 145 698 
 
 lies, R. v Hard. 118 384 
 
 Ince's case 1 Leach, 342 289 
 
 Incledon, R. v 13 East, 164 820, 824 
 
 Ingham 14 Q. B. 396 368 
 
 Ingrain's (Sir Arthur) case .... 3 Bulstr. 91 435 
 
 Ingrain, R. v Salk. 384 151 
 
 Ion, R. v 2 Den. C. C. 475 239, 240 
 
 Ipstone. R. v 37 L. J. M. C. 37 824 
 
 Irving, R. v 2 M. & Rob. 75 399 
 
 Isaacs, R. v MSS. Baylev, J 216 
 
 Israel, R. v 2 Cox, 263 110 
 
 Ivens, R. v 7 C. & P. 213 740 
 
 Jackson's (Mary) case 1 Lew. 270 374 
 
 Jackson, P. o 3 Denio, 101 741 
 
 , R. v 7 Cox, 357 108 
 
 , S. v 1 Speers, 13 553 
 
 Jacobs, C. v 9 Allen, 274 63 
 
 , 11. v R. & M. C. C. R. 140 704 
 
 1 Cox, 173 495, 529 
 
 Jacobson, R. v 14 Cox, 522 936 
 
 James's case R. & R. 17 692 
 
 James r. C 12 Serg. & R. 220 752 
 
 v. Hayward Cro. Car. 184 785 
 
 , R. v MSS. C. S. G. ; 5 C. & P. 153 .. . 574, 584 
 
 cited 1 Str. 679 202 
 
 2 Den. C. C. 1 203, 420 
 
 7 C. & P. 553 30 
 
 12 Cox, 127 60 
 
 24 Q. B. D. 439 174 
 
 3 Stark. Evid. 857 388, 403 
 
 3 B. & S. 901 808 
 
 J Anson v. Stuart 1 Tr. 748 490, 745, 753 
 
 Jarvis v. Dean 3 Bing. 447 763 
 
 , R. v 2 M. & Rob. 40 177 
 
 Dears. C. C. 552 199, 242 
 
 3 F. & F. 108 275 
 
 Jayne v. Price 5 Taunt. 326 728 
 
 Jefferies, R. v 3 Cox, 85 164 
 
 Jekyll v. Sir J. Moore 2 N. R. 341 599 
 
 Jelf v. Oriel 4 C. & P. 22 53 
 
 vol. i. — d
 
 Table of Cases. 
 
 Page 
 
 Jemot. R. v Jerv. Archb. 366 10 
 
 Jenks v. Turpin 13 Q. B. D. 505 747, 930 
 
 .Tenner v. ABeckett 41 L. J. Q. B. 14 628, 646 
 
 Jennings, C. v 3 Grat. 624 657 
 
 , R. v K. & R. 388 42 
 
 1 Cox, 115 469,470 
 
 Jenour. II. v 7 Mod. 400 597 
 
 Jervis, R. v 6 C. & P. 156 186 
 
 Jeyes, R. v 3 A. & E. 416 98, 101 
 
 . I. »h n son v. Hodgson 8 East, R. 38 806 
 
 R v C. & M. 218 164 
 
 1 F. & F. 657 791 
 
 29 L. J. (M. C.) 133 820 
 
 3 M. & S. 549 192, 193, 527 
 
 R. & R. 492 290, 955 
 
 34 L. J. M. C. 24 63, 808 
 
 10 A. & E. 740 92 
 
 R. & M. C. C. R. 173 100 
 
 34 L. J. M. C. 85 807, 808 
 
 42 L. J. M. C. 41 300 
 
 7 East, 65 641 
 
 v.H 76 Ga. 790 381 
 
 Jolliffe, R. v 4 T. R, 285 497 
 
 Jones's case 1 Leach, 102 119 
 
 Jones v. Ashburnham 4 East, 460 942 
 
 v. Jones 5 M. & N. 523 341 
 
 , R. v Kel. 52 40 
 
 6 C. & P. 137 333, 377 
 
 4 B. & Ad. 345 350, 492, 527 
 
 Peake N. P. C. 37 378 
 
 Kel. 37 159 
 
 1 Salk. 379 204 
 
 1 Bott. 360, pi. 377 418, 429 
 
 1 Str. 474 730 
 
 3 Campb. 230 787 
 
 MSS. C. S G 5, 154 
 
 7 C. & P. 167 106 
 
 4 F. & F. 25 249 
 
 2 Str. 1145 429 
 
 11 Cox, 393 262 
 
 2 Moo. C. C. R. 171 107 
 
 12 A. & E. 684 776 
 
 1 Den. C. C. 101, 166 18, 104 
 
 2 M. C. C. 171 885 
 
 2 Cox, 185 960 
 
 2 C. & K. 524 926 
 
 C. & M. 614 660 
 
 15 Cox. 284 660 
 
 , S. i; 83 N. C. 605 117, 170 
 
 53 Mo. 486 657 
 
 v. Taylor E. & E. 20 200 
 
 Jordan, R. w 9C.&P. 118 117 
 
 7 C. &P. 432 164 
 
 Journeymen Tailors, R. v 8 Mod. 11 491, 492 
 
 Joyce, R. i; Carr. Sup. 184 247 
 
 Judd, C. v 2 Mass. 329 491 
 
 Judson, P. i7 11 Daly, N. Y 556 
 
 K. 
 
 Kay, R. v 16 Cox, 292 689 
 
 Kealey, It. v 2 Den. C. C. 68 27 
 
 Keeper of Prison, C. v 1 Ash. 140 720 
 
 Keir v. Leeman 6 Q. B. 308; 9 Q. B.371 413,414 
 
 Kelly w. Partington 5 B. & Ad. 643; 4 B. & Ad. 700 . . 608,632 
 
 — , R. v Rues. & R. 421 164
 
 Tabic of Cases. 
 
 Kelly, R. »> 2 C. & K. 379 163 
 
 S.v 4 Wash. 528 260 
 
 v. Tinling 35 L. J. Q. B. 231 007,012 
 
 Kemp v. Wickes 3 Phill. R. 264 937 
 
 Kempf, S. v 26 Mo. 429 584 
 
 Kendrick, R. v 7 C. & P. 184 954, 963 
 
 Kennett, R. v 5 C. & P. 282 582 
 
 Kenny, R. u 2 Q. B. D. 307 158 
 
 Kenrick, R. v 5 Q. B. 49 509,512,514 
 
 Kent (Inhab.), R. v 13 East, 220 807 
 
 2 M. & S. 513 864 
 
 (Justices), R. v 10 B. & C. 477 770 
 
 1 B. & C. 622 777 
 
 Kenworthy, R. v 1 B. & C. 711 397 
 
 Kenyon, R. v 6 B. & C. 640 779 
 
 v. Hart 11 Law T. 733 944 
 
 Kerrison, R. v 1 M. & S. 435 811, 874 
 
 3 M. & S. 526 868 
 
 Kerthler v. S 10 Sm. & M. 192 180 
 
 Kettleworth, R. v 5 T. R. 33 . 824 
 
 Key, R. v 2 Den. C. C. 347 68 
 
 Keyes, S. v 8 Verm. 57 487 
 
 Keyn, R. v 2 Ex. D. 63 15 
 
 Kilderby, R. ;• 1 Saund. 312 200 
 
 Kilminster, R.v 7 C. & P. 228 949 
 
 Kimber v. Press Association .... (1893) 1 Q. B. 65 602 
 
 Kimberty, R. v 1 Lev. 62 513 
 
 Kimpton, R. v 2 Cox, 296 333, 359 
 
 King's case 4 Inst. 181 594 
 
 Kins? v. Opie 1 Saund. 301 486 
 
 — v. R 14 Q. B. 31 349, 396 
 
 7 Q. B. 782 492, 515, 520, 522, 540 
 
 2 Chitty Rep. 217 541 
 
 , R. v 2 Str. 1268 200 
 
 o. S 40 Geo. 244 659 
 
 Kingsinoor, R. v 2 B. & C. 190 801 
 
 Kingston's (Duchess of) case ... 1 Leach, 146 663 
 
 Kingston, R.v 8 East, 41 429, 885, 880 
 
 Kinnersley, R.v 1 Str. 196 195, 512, 513, 515 
 
 1 Blac. R. 294 626 
 
 Kirk, R.v 1 B. & C. 21 776 
 
 v. Stickwood 4 B. & Ad. 421 413 
 
 Kirkwood, R.v R. & M. C. C. R. 304 173, 174 
 
 Kirton, R.v 6 Cox, 393 307 
 
 Kitchener, R.v L. R, 2 C. C. R. 88 871 
 
 Klintock's case 5 Wheat. 144 260 
 
 Knapp, C. v 6 Pick. 496 101 
 
 Kneeland, C. v 20 Pick. 200 595 
 
 Knell, R.v 1 Barnard, 305 642 
 
 Knight, R.v 1 C. &P. 116 160 
 
 7 B. &C. 413 811 
 
 Knill, R.v 5 B. & A. 929 372, 391 
 
 Knowlden, R.v 33 L. J. M. C. 219 3 
 
 Knox, S. v Phillips N. C. 312 294 
 
 Kohn, R. v 4F. & F. 68 511 
 
 Koops, R. v 6 Ad. & E. 198 381 
 
 Kroehl, R.v 2 Stark. 343 541 
 
 Kuhman, S.v 5 Mo. Ap. 587 553 
 
 Labouchere, R.v 12 Q. B. D. 320 604, 629 
 
 14 Cox, 419 650 
 
 Lacon v. Higgins 3 Stark. N. P. 178 712 
 
 Lacy, R. v 3 Cox, 517 530 
 
 Lade (Sir John) v. Shepherd . . . 2 Str. 1004 763 
 
 Lake's case 3 Leon. 268 . . 428
 
 Hi Table of Cases. 
 
 Page 
 
 Lake v. King . . . / 1 Saund. 131 604 
 
 Lallement, B. v 6 Cox, 204 60 
 
 Lamb B v 3 C. & K. 96 919 
 
 Lambert v. P 76 N. Y. 220 380 
 
 p v 5 Mich. 349 659 
 
 ' R. v 2 Campb. 398 595, 620, 645 
 
 Lambeth,E. v 3 C. L. B. 35 82:; 
 
 Lancashire B. v 2B.& Ad. 813 866 
 
 8 E. & B. 563 778 
 
 (Justices of ), B. v 12 East, 366 821 
 
 Lancaster, B. v . . . 16 Cox, 737 444 
 
 2 Saund. 159 817 
 
 Landulph, R. v 1 M. & Rob. 393 799 
 
 Lane v. Goodwin 4 Q. B. 361 691 
 
 v . S 20 Vroom, 673 425 
 
 Langford, R. v C. & M. 602 554, 568 
 
 Langley, B. v 2 F. & F. 170 823 
 
 6 Mod. 125 594, 626 
 
 1 Ld. Baym. 790 203 
 
 Langrish v. Archer 10 Q. B. D. 44 749 
 
 Langtry v. S 2 Ala. 536 659 
 
 Lapsley v. Grierson 1 H. L. C. 498 699 
 
 Lara, R. v 6 T. R. 565 372 
 
 Lareche, S. v * 28 La. An. 26 419 
 
 Larkin, B. v Dears. C. C. 365 61 
 
 Lathem y.B 9 Cox, 516 528 
 
 Latimer, R.v 15 Q. B. 1077 651 
 
 Laughton v. Bishop of Sodor ... 42 L. J. P. C. 11 611 
 
 Launock v. Brown 2 B. & Aid. 592 747 
 
 Lavey, R. v 1 Leach, 153 213 
 
 _ 3 C. & K. 26 319 
 
 v. E 2 Den. C. C. 504 337, 352, 353 
 
 Law v. Law C. T. T. 140 435 
 
 , R. v 2 F. & F. 836 136 
 
 Lawless v. Anglo-Egyptian Co. . . 38 L. J. Q. B. 129 608 
 
 Lawlev, B. v 2 Str. 904 487 
 
 Lawlor, R. v 6 Cox, 187 352 
 
 Lawrence v. Hitch 37 L. J. Q. B. 202 771 
 
 , B. v MSS. C. S. G 952 
 
 Lawton, P. v 56 Barb. 126 62 
 
 Lav v. Lawson 4 A. & E. 795 609 
 
 Lavcock, B. v 4 C. & P. 326 388 
 
 Layton, B. v 4 Cox, 149 136 
 
 Leach, R, v 6 Mod. 14 785 
 
 , S. v 7 Conn. 752 899 
 
 Leake R. v 5 B. & Ad. 469 764, 795, 864 
 
 Leatham, B. v 3 Law T. 504 447 
 
 3 Law T. 777 449 
 
 Leddington, B. v 9 C. & P. 79 185 
 
 Lee's case 2 M'Nally Ev. 634 534 
 
 Lee v. Lady Baltinglas Styles, 475 66 
 
 , E. v 6 C. & P. 536 177 
 
 1 Phil. Ev. 152 (7th ed.) 368 
 
 2 Stark. Ev. 324 534 
 
 5 Esp. 123 602 
 
 cited R. T. H. 370 198 
 
 45 L. J. M. C. 54 823 
 
 Leech, B. u 6 Mod. 145 843 
 
 2 Man. & Ry. 119 339 
 
 Le I'.mu v. Malcomson 1 II. L. 637 597 
 
 Leefe, E. v 2 Campb. 134 335, 336, 378 
 
 Legge, B. v 6 Cox, 220 358 
 
 Lehre, S. v 2 Brev. 446 595 
 
 Leigh, B. v Ann. Reg. 1775, p. 117 556 
 
 10 A. &E. 398 774,819 
 
 4 F. & F. 915 136 
 
 Le Neve v. Vestry of Mile End Old 
 
 Town 8 E. & B. 1054 769 
 
 Leng, R. v 1 F. & F. 77 72 
 
 Lennard's case .... ... 1 Leach, 90 228
 
 Table of Cases. liii 
 
 Page 
 
 Lesley, R. v Bell C. C. 220 23 
 
 Lethbridge v. Winter 1 Campb. 263 763 
 
 Levett's case Cro. Car. 538 160 
 
 Levi v. Levi 6 C. & P. 239 504 
 
 Levy, R. v 8 Cox, 73 72 
 
 Lewen's case 2 Lew. 161 102 
 
 Lewis v. Clement 3 B. & A. 702 601 
 
 v. Lew E. B. & E. 537 601 
 
 , R.v. 11 Cox, 404 . . . 505 
 
 D. & B. 326 103 
 
 12 Cox, 163 346 
 
 v. Walter 4 B. & A. 645 601 
 
 , Ex parte 16 Cox, 449 581 
 
 Ley's case 1 Lew. 239 140 
 
 Light, R. v D. & B. C. C. 332 591 
 
 Limerick's case Kel. 77 901, 905 
 
 Lincoln (Mayor of), R. v 8 Ad. & E. 65 869 
 
 Lincoln, R.v R. & R. 421 334, 343 
 
 v. Shaw 17 Mass. 410 425 
 
 Lindsay v. Cundy 1 Q. B. D. 348 87 
 
 Lindsev, R. v 14 East, 317 867 
 
 Linton; R. v MSS. C. S. G 823 
 
 Lister, R. v D. & B. C. C. 209 735, 736 
 
 Little, R.v Russ. & Ry. 430 141 
 
 Liverpool (.Ma vor of), R.v 3 East, 86 795 
 
 Llandilo District, R.v 2 T. R. 232 805 
 
 Lloyd v. Lloyd 14 Q. B. D. 725 949 
 
 . R. v 4Esp.200 732 
 
 1 Campb. 260 763 
 
 4 B. & Ad. 135 64 
 
 — 1 Cox, 51 72 
 
 ■ Cald. 415 726 
 
 19 Q. B. D. 213 299 
 
 Loader, R.v MSS 7 
 
 Lockett, R.v 7 C. & P. 300 957 
 
 Lockyer, R. v 5 Esp. 107 528 
 
 Logan v. Burton 5 B. & C. 513 781, 782 
 
 Loggen, R.v 1 Str. 74 425, 427, 428 
 
 Lolley, R.v R. & R. 237 663 
 
 London v. Heden 76 N. C. 72 428 
 
 , R.v 12 Cox, 50 362, 392 
 
 (City of), R. v 27 L. J. M. C. 231 88,89 
 
 (Lord Mayor of), R.v. . . 16 Cox, 77 2 
 
 16 Q. B. D. 772 154, 598 
 
 London and Birmingham Railwaj r 
 
 Company, R.v 1 C. N. & H. 317 . . .... 791 
 
 London & Northwestern Rv. Co., 
 
 Simkin v 21 Q. B. D. 453 789 
 
 Long, R.v 7 C. & P. 314 952 
 
 Longton Gas Co., R.v 8 Cox, 317 789 
 
 Lonsdale (Lord) v. Rigg 11 Exch. R. 654 944 
 
 Lookup, R.v 3 Burr. 1901 396 
 
 Loose, R.v Bell C. C. 259 34 
 
 Lopez, R.v D. & B. C. C. 525 19, 21, 160 
 
 Lord v. Commissioners for the City of 
 
 Sydney 12 Moore P. C. C. 473 843 
 
 Lordsmere, R. v 15 Q. B. 689 771,772,773 
 
 Loring, C. v 8 Pick. 370 934 
 
 Losky v. Green 9 C. B. (N. S.) 370 57 
 
 Lovat's (Lord) case 18 St. Tr. 530 535 
 
 Loveless, R. v 1 M. & Rob. 349 ; 6 C. & P. 596 . . 405,406 
 
 Lovett, R. v 11 Cox, 602 110 
 
 9 C. & P. 462 622, 634, 643 
 
 Lowe, R.v 2 Str. 92 428 
 
 Lowen v. Kaye 4 B. & C. 3 775, 786 
 
 Lowery v. S 30 Tex. 402 491 
 
 Lows v. Telford 45 L. J. Ex. 613 722 
 
 Lucv, R.v C. & M. 510 400 
 
 Lumlev, R.v 38 L. J. M. C. 86 . . 661 
 
 Lynn, R. >< 2 T. R. 534 497, 933, 942
 
 liv Table of Cases. 
 
 Page 
 
 Lynn, R. v 1 C. & P. 527 813 
 
 (Mayor of) r. Taylor . . Cowp. 86 843 
 
 Lyon's case 1 East, P. C. p. 469 66G 
 
 Lyons v. Martin 8 Ad. & E. 512 274 
 
 M. 
 
 M 'Arthur, It. v Peake's Cases, 155 381 
 
 M'Athcy, R. v 1 L. & C. 250 151 
 
 MeBride?;. C. 4 Bush, 331 419 
 
 S v 19 Mo. 239 557 
 
 McCann, P. v 3 Parker, 272 138 
 
 M'Carthur, R. v Peake's N. P. C. 155 343 
 
 M'Carthyw. S 26 Miss. 299 170 
 
 M'CIarens, R. v ' . . 3 Cox, 425 14* 
 
 M'Culloch, C. v 15 Mass. 227 489 
 
 M'Daniel, R. v 19 St. Tr. 806 180 
 
 , Berry, and Jones, R. v. . . 1 Leach, 44; Fost 131 172 
 
 McDonald, R v 15 Q. B. D. 323 117 
 
 M'Dougall v. Claridge 1 Campb. 267 607 
 
 M'Greeor, R. v 1 C. & K. 429 260 
 
 r"S. v 41 N. H. 407 161 
 
 v. Thwaites 3 B. & C. 24 602 
 
 M'Govan v. S 9 Yerg. 184 161 
 
 McGuire v. Tobey 62 Mich. 252 116 
 
 Mclntyre 3 Ire. 171 423 
 
 M'Kenzie, R. v H. & R. 429 205 
 
 xMcKenzie, R, 0. (1892) 2 Q. B. 519 547 
 
 M'Keron, R. v 5 T. R. 316 354 
 
 M'Naghten, R. v 10 CI. & F. 200 125,127 
 
 McNaughten, R. v 14 Cox, 576 570 
 
 MTherson v. Daniels 10 B. & C. 263 598 
 
 , R. v 1 I). & B. 197 63 
 
 M'Shane, R. v C. & M. 212 164 
 
 Maberry, S. v 1 Strobb. 144 896 
 
 Macarty v. Wickford Bac. Ab. Offices 435 
 
 MacCafferty, R. v 10 Cox, 603 529 
 
 Macclesfield's (Earl of) case ... 6 St. Tr. 477 433 
 
 Maedaniel, R. r Fost. 125 189 
 
 Maedaniels, R. v 1 Leach, 44 494 
 
 Macdonald, R. v 2 Burr. 1646 203 
 
 Macdougall v. Knight 17 Q. B. D. 636 601 
 
 Mace, S. v 86 N. C. 668 381 
 
 Machynlleth, R. v 2 B. & C. 166 802, 856 
 
 1 4 B. & Aid. 469 820 
 
 Mackarty, R. v 2 Ld. Raym. 1179 491, 505 
 
 6 East, 133 491 
 
 IVTackay v. Ford 5 H. & N. 792 601 
 
 Macklin, R. v 5 Cox, 216 89 
 
 Maclean v. Cristall Per Oriental Cas. 75 693 
 
 Macmillan, R. v 1 Cox, 41 231 
 
 Madan's case 1 Leach, 223 927 
 
 Madden, R. u R. & M. C. C. R. 277 170 
 
 Madge, R. v 9 C. & P. 29 12 
 
 Madison's (Lady) case 1 Hale, 693 713 
 
 Mainwaring, R. v 26 L. J. M. C. 10 693,694 
 
 Maires, S. r 4 Vroom, 142 425 
 
 Mairet v. Marriner 34 Wis. 582 394 
 
 Malek Adhel, The 2How.U. S. 219 260 
 
 Malison, Inre 1 Lew. 132 102 
 
 Malland, R. v 2 Str. 828 202 
 
 Maloney 0. Bartley 3 Campb. 210 633 
 
 Malton (Old), R. v 4 B. & Aid. 470 820 
 
 Manby w.Witt 18 C. B. 544 607 
 
 Manley, R. v 1 Cox, 104 165 
 
 Mann, R. v 4 M. & S. 337 819 
 
 Manning v. E. Counties R. Co. . . . 12 M. & W. 237 783 
 
 ,R. v 1 Den. C. C. 467 147
 
 Table of Cases. lv 
 
 Page 
 
 Manning, R. v 12 Q. B. D. 241 513 
 
 Mannion, R. v 2 Cox, 158 11 
 
 Marchant, R. v 1 Cox, 203 884 
 
 Margate, R. v 6 M. & S. 130 824 
 
 Marigold, U. S. v 9 How. U. S. 560 233 
 
 Marks v. Benjamin 5 M. & W. 564 743 
 
 , R. v 3 East, 157 405 
 
 Markson, R. v 17 Cox, 483 571 
 
 Marrow, R. v C. T. H. 174 728 
 
 Marsden, R. v 4 M. & S. 164 630 
 
 Marsh v. Loader 14 C. B. (N. S.) 535 114 
 
 , S. v 64 N. C. 378 725 
 
 Marshall's case 1 Lew. 76 145 
 
 Martin's case 2 Leach, 223 241,281 
 
 Martin, R. v 2 Campb. 26b 422 
 
 R. & R. 196 908 
 
 8 Ad. & E. 481 38, 49, 151 
 
 9 C. & P. 213, 215 812 
 
 2 Q. B. 1037 823 
 
 5 Cox, 356 . . 593 
 
 39 L. J. M. C. 31 68, 237 
 
 Mason's case 8 Mod. 74 ; 2 East, P. C. 796 ... 263, 264 
 
 Master v. Miller 4 T. R. 340 478, 479 
 
 Mastin v. Escott Dr. Curteis, R 937 
 
 Mather v. Ney 3 M. & S. 265 689 
 
 Mathias, R. v 2 F. & F. 570 701 
 
 Matthews, R. v 1 Den. C. C. 596 150 
 
 Maudsley's case 1 Lew. 51 539 
 
 Maule, R. v 41 L. J. M. C. 47 777, 778 
 
 Mawbey, R. v 6 T. R. 619 294, 491, 492, 498, 
 
 516, 819, 820, 971 
 
 Mawgan, R. v 8 A. & E. 496 205, 807 
 
 May's case 1 Leach, 133 338 
 
 May, R. v 2 East, P. C. 796 264 
 
 5 Cox, 176 953, 958, 962 
 
 Maybury, R. v 4 F. & F. 90 818 
 
 Mayhew, R. v 6 C. & P. 315 371 
 
 r. Wardley 14 C. B. (N. S.) 550 947 
 
 Mayne v. Fletcher 9 B. & C. 382 639 
 
 Mead v. Boston 3 Cush. 404 193 
 
 Meadhara, R. v 2 C. & K. 633 953 
 
 Meakin, R. v 7 C. & P. 297 . 144 
 
 Meaney, R. v 10 Cox, 506 529 
 
 Mears, R. i- 2 Den. C. C. 79 507 
 
 Medley, R. v 6 C. & P. 292 276, 758 
 
 Meek, R. v 9 C. & P. 513 318, 339, 379 
 
 Meese v. S 15 Neb. 558 569 
 
 Melling, R. v 5 Mod. 349 392 
 
 Mellor, R. v 1 B. & Ad. 32 772 
 
 2 Dowl. P. R. 173 946, 954 
 
 Menham, R. v 1 F. & F. 369 18 
 
 Meredith, R. v. . . • Russ. & Ry. 46 420 
 
 Merionethshire, 11. v 6 Q. B. 343 878, 879 
 
 Merry, R. v MSS. C. S. G 951, 955 
 
 Messingham, R. v R. & M. C. C. R. 257 188 
 
 Metropolitan Board of Works v. 
 
 McCarthy 43 L. J. C. P. 385 732 
 
 Michell o. Brown 2 E. & E. 267 193 
 
 Middlemore, R. v 6 Mod. 212 585 
 
 Middlesex (Justices), R, v 3 B. & Ad. 201 870,872,876 
 
 5 Ad. & E. 620 777 
 
 3 B. & Ad. 1113 49 
 
 Middleton, R. v Fort. 201 646 
 
 1 Str. 77 641 
 
 Midgley v. Wood 30 L. J. D. & M. 57 690 
 
 Midville, R. v 4 Q. B. 240 800 
 
 Migotti v. Colvill 4 C. P. D. 233 1 
 
 Mildred v. Weaver 3 F. & F. 30 766 
 
 Miles v. Rose 5 Taunt. 706 843 
 
 , R, v 24 Q. B. D. 423 45
 
 Ivi Table of Cases. 
 
 Page 
 
 Millard, R. v Dears. C. C. 166 300, 301, 303, 304 
 
 , S. v 18 Vt. 574 750 
 
 Miller's case 1 Leach, 74 926, 927 
 
 3 Wils. 427 294 
 
 Miller v. Munson 34 Wis. 579 394 
 
 ■ v. P 2 Scam. 235 195, 750 
 
 Millis, R. v 10 CI. & F. 534 693 
 
 Milner v. Maclean 2 C. & P. 17 .723 
 
 Milnes, 11. v 2 F. & F. 10 384 
 
 .Milton, R. u 1 C. & K. 58 813 
 
 Milverton, R. r 5 Ad. & E. 841 775,776,777 
 
 Minify, R. v 1 Str. 642 882 
 
 Mitchell, C.v 3 Bush, 30 419 
 
 , R. v 2 Q. B. 636 5 
 
 Mitton, R. v 3 Esp. R. 200 888 
 
 Mizen, R. v 2 M. & Rob. 382 486 
 
 Mogul Steamship Co. v. McGregor, 
 
 Gay, & Co (1892) A. C. 25 492,496,508,552 
 
 Moland, R. v 2 M. C. C. R. 276 184 
 
 Molier, S. v 1 Dev. 263 376 
 
 Monkhouse, R. v 4 Cox, 55 144 
 
 Montague, R. v 4 B. & C. 599 758, 843 
 
 Montgomery v. S 10 Ohio, 220 376 
 
 Montrion, R. v 9 Cox, 27 237 
 
 Moody, II. v 5 C. & P. 23 389, 398 
 
 v. Ward 13 Mass. 299 787 
 
 Mooney, R. v 5 Cox, 319 324 
 
 Moore's case 1 Leach, 314 167 
 
 Moore, R. v R, & M. C. C. R. 122 229 
 
 3B. & Ad. 184. . . . 739 
 
 3 C. & K. 319 144 
 
 Moors, R. v 6 East, 419 407, 408 
 
 Morant v. Chamherlin 6 H. & N. 541 769 
 
 Moreau, R. v 11 Q. B. 1028 391 
 
 Morgan, R. v • . . 6 Cox, 107 366 
 
 1 Cox, 109 402 
 
 v. Whitmore 6 Exch. 716 716 
 
 Morris's case 2 Leach, 1096 173 
 
 Morris v. Blackmail 2 H. & C. 912 754 
 
 v. Bowles Dana, 97 718 
 
 w.Miller 1 Bl. R. 632 ; 4 Burr. 2057 . . .160,666,713 
 
 , R. v 1 B. & Ad. 441 . . . • 734, 788, 846 
 
 R. & R. 270 153 
 
 5 Cox, 205 961 
 
 2 Burr. 1189 383 
 
 L. R. 1 C. C. R. 90 45, 51 
 
 Mortlock, R. v 7 Q. B. 459 887 
 
 Morton, R. v R. & R. 19 692 
 
 Mosley, R. v 3 Ad. & E. 488 ; 5 M. & N. 261 429 
 
 Moss, R. v D. & B. C. C. 104 930 
 
 >■■ Smith 1 M. & G. 228 712 
 
 Most, P. v 128 N. Y. 108 569 
 
 Mott, R. i; 2 C. & P. 521 505 
 
 Mouflet v. Cole 42 L. J. Ex. 8 5 
 
 Mould v. Williams 5 Q. B. 469 798 
 
 Mounsey v. Ismay 1 H. & C. 729 762 
 
 Mudie,\R. v 1 M. & Rob. 128 362, 375, 389, 398 
 
 Mullany, R. v L. & C. 593 319 
 
 Mullett v. Hunt 1 Cr. & M. 752 318 
 
 Mulligan v. Cole 44 L. J. Q. B. 153 031 
 
 Munslovv, R. v (1895) 1 Q. B. 758 Add. 
 
 Munton, R. v 3 C. & P. 498 379, 392 
 
 Murphy, R. v 6 C. & P. 103 527 
 
 8 C. & P. 297 530, 533, 534, 541 
 
 Murray, R. v 1 F. & F. 80 315 
 
 1 Chit. Burn's Just. 817 496 
 
 7 Q. B. 700 661, 716 
 
 Muscot, R. v 10 Mod. 195 308, 368, 392 
 
 Mutters, R. v L. & C. 511 157, 736
 
 Table of Cases. Ivii 
 
 N. 
 
 Page 
 
 Nash, R. v MSS. C. S. G 95(5 
 
 Naylor, R. v 11 Cox, 13 308 
 
 Neale, li. v 3 Keb. 89 810 
 
 9 C. & P. 431 570 
 
 Neil, It. v 2 C. & P. 485 733 
 
 Nepean v. Knight 2 B. & A. 386 661 
 
 Nether Hallam, It. v 6 Cox, 435 818 
 
 Netherthong (Inhab.), R. v 2 B. & Aid. 179 794,801,856,865 
 
 Neville, R. v Peake, R. 91 733, 734 
 
 6 Cox, 69 57 
 
 Newbokl, R. v 11 Cox, 231 795 
 
 Newbv v. T 1 Ore. 163 553 
 
 Newcomb v. S 7 Miss. 383 138 
 
 Newell, R. v 6 Cox, 21 387 
 
 Newhouse, R. v 22 L. J. Q. B. 127 651 
 
 Newman, R. v 2 Den. C. C. 300 386 
 
 1 E. & B. 558 650 
 
 Newmarket Ra. Co., R. v 15 Q. B. 702 776 
 
 Newport Bridge, R. o 2 E. & E. 377 862 
 
 New Sarum, R. v 7 Q. B. 941 776, 855, 861 
 
 Newton v. Harland 1 M. & Gr. 644 718, 721 
 
 , R. v 1 C. & K. 469 53, 54, 294, 380, 715 
 
 Nicholl v. Allen 1 B. & S. 916 858 
 
 , R. v 1 B. & Ad. 21 355 
 
 Nicholls, R. v 2 Str. 1227 512, 543 
 
 MSS. C. S. G 395 
 
 Nicholson's case 1 Lew. 300 585 
 
 Nickless, R. v 8 C. & P. 757 957, 959 
 
 Nield, R.v 6 East, 417 503 
 
 Nightingale v. Sto^kdale .... Selw. N. P. 1044 . 606 
 
 Noakes, R.v 5 C. & P. 326 289 
 
 Northampton's (Mayor of) case . . 1 Str. 422 626 
 
 Northampton, R.v 2 M. & S. 262 769, 854, 876 
 
 Northfiekl, R.v Dougl. 659 695 
 
 No-ton, It. v 16 Cox, 59 450 
 
 8 C. & P. 196 38 
 
 Norwich, R. v 2 Burr. 859 877 
 
 1 Str. 181 .... 813, 861, 872, 873, 875, 877 
 
 (Mayor of) v. Norfolk Rail- 
 way Co 4 E. & B. 440 847 
 
 Nott, R.v 4 Q. B. 768 200, 327, 402, 410 
 
 C. & M. 288 401 
 
 Noves, S. v 10 Foster, 279 ... . ... 755 
 
 Nueys, R.v 1 Black. R. 416 .... . ... 396 
 
 Nun, R. v 10 Mod. 186 194 
 
 Nutt, R. v 1754 Dig. L. L. 126 . . . . 618, 645 
 
 O. 
 
 Oakley, R. v 4 B. & Ad. 307 719 724 
 
 Oastler, R.v 34 L. J. Q. B. 42 825 
 
 Oates, R.v R. & M. C. C. R. 175 100 
 
 O'Brien, R.v 15 Cox, 29 47 
 
 O'Connell v. It 11 CI. & FI. 155 . . 491, 492, 493, 502, 526, 542 
 
 1 Cox, 405 639 
 
 O'Connor, R.v 5 Q. B. 16 26, 37, 665 
 
 15 Cox, 3 930 
 
 Offord, R. v 5C. & P. 168 123 
 
 Oldfield, It. v 3 B. & Ad. 657 742 
 
 Old Malton, R. v 4 B. & A. 470 820 
 
 Oliver, R.v 13 Cox, 588 61 
 
 Oniealy v. Newell 8 East, 364 320 
 
 O'Neill v. Kruger 4 B. & S. 389 972 
 
 v. Longman 9 Cox, 360 972
 
 Iviii Table of Cases. 
 
 Page 
 
 O'Neill v.S 16 Ala. 65 587 
 
 ( >pie, R. v 1 Saund. 301 486 
 
 Orchard, R. i- 3 Cox, 248 . . ' 750 
 
 O'Reilly v. P 86 N. Y. 154 . . . <j 8 ] 
 
 Orgffl, R. v 9C. & P. 80 '691 703 
 
 < Irman, R. v 14 Cox, 381 ' 504 
 
 Orme, R. v 3 Salk. 224 ' ' 628 
 
 OBbond v. Meadows 12 C. B. (N. S.) 18 . . . . ' 944 
 
 Osborn, R. v 3 Burr. 1697 ! ! ! 202 
 
 Osborne, R. v 2 Barnard, 138 ... ' ' 628 
 
 v. Milman 18 Q. B. D. 471 '.'.'.' 83 
 
 Osmer, R. d 5 East, 304 881 
 
 Oswestry, R. v 6 M. & S. 361 '861 873 874 
 
 12 Q. B. 239 ' ' 104 
 
 < »\ crton v. Freeman 11 C. B. 867 . . 785 
 
 , R. v C. & M. 655 309 
 
 4 Q. B. 83 . . . . o 52 
 
 Owen, R. v R. & M. C. C. R. 118 ... ' ' ' ' 961 
 
 4C. &P. 236 'll5 
 
 R. & M. C. C. R. 96 164, 961 
 
 6 Cox, 105 314' 371 
 
 M. S. Dig. L.L. 67 on 
 
 , S.v 72 N. C. 604 ' 381 
 
 Oxford, R. v R. & R. 382 230 
 
 9C. &P. 525 122, 123 139 143 
 
 Oxford & Witney Road Trustees, R. v. 12 A. & E. 427 809 
 
 Oxfordshire (Inhab.), R. v 1 B. & Ad. 289 '.'.'.'. 854 
 
 1 B. & Ad. 297 854 
 
 4 B. & C. 194 794, 855, 856 
 
 — _ 16 East, 223 819, 877, 878 
 
 Oxley, R. i- 3 C. & K. 317 344 
 
 Pacific Steam Navigation Co. v. Lewis 16 M. & W. 783 56 
 
 Paddington Vestry, R. v 9 B. & C. 456 . . 796 
 
 Page, R. v 8 C. & P. 122 ! ' ' 240 
 
 2 Moo. C. C. 290 242 
 
 MSS. C. S. G. ; 9 C. & P. 756 .. . 245 
 
 Paine, R. v 7 C. & P. 135 98 
 
 Holt on Libel, 88 618 
 
 5 Mod. 165 633, G34, 642 
 
 Palmer's case 1 Deac. Dig. Cr. L. 147 . . . 690 
 
 Palmer, R. v 1 M. & Rob. 70 ' 290 955 
 
 2 Burr. 1162 ' 417 
 
 1 New Rep. 96 166 
 
 , S. v 3 Wheat. 610 260 
 
 Pappineau, R. v 1 Str. 686 732,758.759,820 
 
 Papworth (Upper), R. v 2 East, 413 ' 822, 824 
 
 Parcel's case Cro. Eliz. 195 ' 489 
 
 Paris u.Levy 9 C. B. (N. S.) 342 607,646 
 
 Parker's case 1 Leach, 41 ' 199 
 
 Colliss, 477 121 
 
 Parker, C. v 3 Cush. 212 368 
 
 , R. v Dver, 186 175 
 
 L. & C. 459 949 
 
 39 L. J. M. C. 60 362 
 
 C. & M. 639 375, 389 
 
 3 Q. B. 292 516, 519 
 
 , S. v 20 Tex. Ap. 451 114 
 
 Parkes v. Prescott 38 L. J. Ex. 105 635, 636 
 
 Parkhouse, R. >■ 1 East, P. C. 462 502 
 
 Parmiter v. Coupland 6 M. & W. 105 .... 646 
 
 Parnell, R. v 14 Cox. 508 ....".] 492 493 
 
 Parry. R. r 7 C. & P. 836 49, 50 
 
 Parsons v. St. Matthew's, Betlmal 
 
 Green 37 L. J. C. P. 62 ... . 794 
 
 , R- v 1 Black. Rep. 392 ....'...'.] 533
 
 Table of Cases. lix 
 
 Page 
 
 Parsons, R. v 10 Cox, 243 920 
 
 Passey, R. v 7 C. & P. 282 956 
 
 Patten, P. v 18 Mich. 314 585 
 
 Patteson v. Jones 8 B. & C. 578 608 
 
 Paul, R. v 2 M. & Rob. 307 774, 822 
 
 Payne, R. v R. & M. C. C. R. 378 951 
 
 L. R. 1 C. C. R. 27 913 
 
 Peace, R. v 2 B. & A. 579 337 
 
 Peacock v. Sir G. Reynell .... 2 Brownl. 151 607 
 
 Pearce, R. v 9 C. & P. 667 143 
 
 9 Cox, 258 300 
 
 Peake's N. P. C. 75 639 
 
 Pearl v. Rawdin 5 Day, 244 894 
 
 Pearson's case 1 Lew. 154 962 
 
 2 Lew. 144 144 
 
 Pearson r. Lemaitre 5 M. & G. 700 645 
 
 , R. v 8 C. & P. 119 346 
 
 ., S. v 2 N. H. 550 720 
 
 Pease, C. v 16 Mass. 91 412 
 
 , R. v 4 B. & Ad. 30 . 789, 791 
 
 Peat's case 2 Lew. 288 715 
 
 Pechell v. Watson 8 M. & W. 691 478 
 
 Peck, R. v 9 A. & E. 686 492, 517, 521 
 
 Pedlev's case 1 Leach, 325 294 
 
 Pedley, R. v 1 A. & E. 822 756 
 
 1 Leach, 242 40 
 
 Peel, R. v 1 L. & C. 231 15 
 
 Peltier, R. v Holt on Libel, 78 595, 630, 642 
 
 Pembridge, R. v MSS. C. S. G 758 
 
 3 Q. B. 901 823, 824, 879 
 
 Penderryn, R. v 2 T. R. 260 819 
 
 Pennington, S. v 3 Head, 299 752 
 
 Penny, R. v 1 Lord Raym. 153 625 
 
 Penson, R. v 5 C. & P. 412 691 
 
 Pepys, R. v Peake, N. P. R. 138 309 
 
 Perkin, R. v 14 Q. B. 229 798 
 
 2 Den. C. C. 459 165 
 
 4 C. & P. 537 571, 587 
 
 Perrott, R. v 2 M. & S. 385 361 
 
 Perry, R. v 15 Cox, 169 608 
 
 MS. 1793 621 
 
 , S. v 5 Jones, 9 587 
 
 v. Tupper 70 N. C. 538 718 
 
 Peters, S. v 107 N. C. 876 368 
 
 Petrie v. Nuttall 11 Exc. R. 569 818 
 
 , R. v 4 E. & B. 737 766 
 
 Philips, R, r 8 C. & P. 736 117 
 
 2 Str. 921 332 
 
 Phillips v. Hunter 2 H. Bl. 412 698 
 
 , R. v 6 East, 464 196, 593 
 
 R. & R. 369 230, 949 
 
 2 M. C. C. 252 554, 568 
 
 35 L. J. M. C. 17, 217 777, 779 
 
 , S. v 24 Mo. 475 180 
 
 Phillpots, R. v 2 Den. C. C. 302 313, 319, 393 
 
 Pierce, R. v 6 Cox, 117 7 
 
 7 Cox, 206 89 
 
 Pierson. R. v 2 Lord Raym. 1197 741 
 
 Piller, R. v 7 C. & P. 337 5 
 
 Pinnev, R. v 5 C. & P. 254 ; 3 B. & Ad. 946 582 
 
 Pipe v. Fulcher E. & E. Ill 813 
 
 Pippet v. Hearn 5 B. & A. 634 350, 495 
 
 Pippin v. S 36 Tex. 696 419 
 
 Pitt, R. v 3 Burr. 1338 443, 444, 455 
 
 Piatt, P. v 17 Johns. 195 842 
 
 Plumer, R. v R. & R. 264 641 
 
 Plvmpton's case 2 Lord Ravm. 1377 197, 444 
 
 Pollard. R. v cited 2 Moo. C. C. 53 154 
 
 Pollen v. Brewer 7 C. B. (N. S.) 371 718 
 
 Pollnian, R. v 2 Campb. 229 . . .197,433,444,501,534,539
 
 Ix Table of Cases. 
 
 Page 
 
 Poole v. Huskinson 11 M. & W. 827 765, 769, 806 
 
 v. Poole 2 Tyrw. R. 76 6b« 
 
 (Mayor of), R.i; 19 Q. B. D. 602 37,834 
 
 Popham «. Pickburn 7 H. & N. 891 604 
 
 Porter, C. v 1 £ra y 476 65< 
 
 p s 6 Cal. 26 428 
 
 Potez o. Glossop 2 Exc. R. 191 716 
 
 Potter, S.v. 28 Iowa 554 491 
 
 Potts v. Sparrow 6 C. & P. 749 484 
 
 Pougett v. Tomkins 8 M. & S. 2b3 689 
 
 Poulterer's case, The 9Re P-£ 5 ^'„< Si 
 
 i> 0V ev R v Dears. C. C. 32 699 
 
 Powell, R. v. '.'... 2B.&Ad.75 396 
 
 . 7 C. & P. 640 88 
 
 . 42 L. J. M. C. 129 775 
 
 . . . R. & M. N. P. R. 101 337 
 
 Power, C.V ! '. 7 Met. 596 740 
 
 Powers, S.v 36 Conn. 77 <40 
 
 Poynder,R.« 1 B. & C. 178 . 429 
 
 Prat /• Stparn Cro. Jac. 382 lob 
 
 Pritt R * ' 4E. &B. 860 947,960 
 
 Preedy.R-V .' 17 Cox, 433 746 
 
 Prescott v. Buffery 1 C. B. 41 31 
 
 Prestney, R. i; 3 Cox, 505 952 
 
 Preston, R. v 2 Lew. 193 822 
 
 7 Dowl. P. C. 593 824 
 
 Price v. Beattie 32 L. J. Ch. 734 481 
 
 R v 11 A. & E. 727 200 
 
 ' 5 Cox, 277 951 
 
 " 7 C. & P. 178 951 
 
 .... 5 C. & P. 510 566 
 
 ' .... 12 Q. B. I). 247 936 
 
 8C. &P. 19 ......... 151,152 
 
 Priestly v. Hughes 11 East, 1 
 
 Prince, R. v 11 Cox, 145 
 
 692 
 158 
 
 47 L. J. M. C. 122 160 
 
 Pritchard, R. v 7 C. & P. 303 .119 
 
 L. & C. 34 30, 62 
 
 Probert, R. v Dears. C. C. 32 (a) 540, 758 
 
 Prosser's case I Leach, 290, note 189 
 
 Prowe 8> R.» 1 M. C. C. R. 349 12 
 
 Pugli v. Curgenven 3 Wils. 35 455 
 
 St' " Jones, 61 11' 
 
 Pulham.R.'f. : 9C.&P.280 51,187 
 
 Punshon, R. r 3 Campb. 96 382 
 
 Purcell v. Macnaraara 6 East, 156 334 
 
 Purchase. R. v C. & M. 617 360 
 
 Purdy, v. Stacy ; J Burr. 2698 
 
 Pvni, R. v I Cox, 33t 
 
 )0 190 
 
 Q 
 
 Queen's case, The 2 Brod. & B. 302 520 
 
 Quick v. Coppleton 1 Ventr. 161 942 
 
 Quinn's case 1 Lew. 1 159 
 
 R. 
 
 Radnor (Lord), R. e 8 Dowl. P. C. 717 808 
 
 Ramsay, R. r 15 Cox, 231 617,649 
 
 Ramaden.R. o E. B. & E. 949 803 
 
 Ramsey, S. r 1 Hemp. 481 170 
 
 Randall, B. e C. & M. 496 846
 
 Table of Cases lxi 
 
 Page 
 
 Randolph, P. v 2 Parker, 174 117 
 
 Hansford, R. v 13 Cox, 9 196 
 
 Raphael, R. v Mannings Ind 232 382 
 
 Rastall v. Straton 1 H. B. 49 ;J:;:) 
 
 Rateliffe's case 1 Lew. 121 190 
 
 Rawlings, R. v 8 C. & P. 439 346 
 
 v. The Coal Consumers' Asso- 
 ciation 43 L.J. M. C. Ill 412 
 
 Raymond, S. v Iowa, 582 368 
 
 Rayner, R. v 2 Barnard, 2'J3 621 
 
 Rea, R. v L. R. 1 C. C. H. 1 GUI 
 
 Read a. Edwards 17 C. B. (N. S.) 245 944 
 
 v. Jackson 1 East, 355 817 
 
 , R.v 1 Cox, 65 188, 190 
 
 6 Cox, 134 510 
 
 11 Mod. 142 617 
 
 Real v. P 42 N. Y. 270 138 
 
 Redford v. Birley 3 Stark. N. P. C. 76 570, 585 
 
 Reed v. Cowmeadow 7 C. & P. 821 898 
 
 v. Lamb 6 H. & N. 75 418 
 
 v. Norman 8 C. & P. 65 716 
 
 v. P 1 Parker, 481 138 
 
 , R. v 12 Cox, 1 751) 
 
 Rees, R. v 5 C. & P. 302 lnl 
 
 Reeves, R. v MS 621 
 
 Reilly's case 1 Leach, 454 395 
 
 Renshaw, R. v 2 Cox, 285 196, 203 
 
 Revel, R.v 1 Str. 420 625 
 
 Revis v. Smith 18 C. B. 126 599 
 
 Reynell, R. v 6 East, 315 756, 761, 819 
 
 Reynolds, R. v R. & R. 465 288 
 
 , Lire 1 Sess. C. 51 y45 
 
 Rhoades v. C 3 Harris, 272 491 
 
 Rhodes, C. v 4 B. Mon. 171 422 
 
 , R. v 2 Ld. Raym. 886 . . 308, 332, 335, 378, 395 
 
 Rice, R. v 3 East,. 581 593,594 
 
 35 L. J. M. C. 93 745 
 
 Rich v. Basterfield 4 C. B. 783 756, 757 
 
 , R.v MSS. Bayley, J 893 
 
 Richards, R.v 8 T. R. 637 195, 201, 762, 806 
 
 2 Q. B. D. 311 172 
 
 8B. &C.420 101 
 
 1 F. & F. 87 128 
 
 Richardson, R.v 1 M. & Rob. 402 518 
 
 v. Willis 8 L. J. Ex. 69 649 
 
 Richmond, R. o 1 C. & K. 240 231 
 
 Rickey, S. v 4 Halst. 293 491,492 
 
 Rid^elay's case 1 Leach, 189 229 
 
 1 East, P. C. 164 211, 230 
 
 Ridgway, R.v 5 B. & Aid. 527 503 
 
 Ridley, R.v R. & R. 515 961 
 
 Rigby, R.v 14 Q. B. 687 793 
 
 8 C. & P. 770 367 
 
 Riley's case 1 Lew. 149 962 
 
 Riley, R. v 3 C. & K. 116 961 
 
 Ping, R.v 17 Cox, 491 63 
 
 Ripley, R.v 17 Cox, 120 451 
 
 Rispal, R. v 3 Burr. 1320 491, 495, 527 
 
 Bobbins v. Jones 15 C. B. N. P. 221 769 
 
 Roberts v. Brown 10 Bing. 519 . . . 601 
 
 o. Camden 9 East, 93 363 
 
 v. Hunt 15 Q. B. 17 796 
 
 o. Karr 1 Campb. 261 763, 769, 854 
 
 , R. v 4 Mod. 101 426 
 
 Carth. 226 241,428 
 
 Dears. C. C. 539 197, 215 
 
 43 L. J. M. C. 17 109 
 
 1 Campb. 399 504, 536 
 
 2 C. & K. 607 376 
 
 12 Cox, 574 109
 
 lxii Table of Cases. 
 
 Page 
 
 Roberts, R. v 14 Cox. 279 380 
 
 v. Roberts 2 B & A. 367 498 
 
 v. Rose 4 H. & C. 103 755 
 
 v. Yardley 3 H. & C. 162 ' ' 731 
 
 Robey, R. v 5 0. & P. 552 [ \ 98 
 
 Robinson's case 2 Roll. Rep. 50 ' 229 
 
 1 Lew. 129 106 
 
 Robinson v. Bland 2 Burr. 1079 ' 693 
 
 v. Comyns C. T. T. 166 .'.'.".'. 927 
 
 v. Jerniyn 1 Price, R. 11 .'...' 627 
 
 . liv 2 Burr. 800 . 201,' 418, 884 
 
 1 Leach, 37 497 
 
 R. & M. C. C. R. 413 . . . . .' ." '241246 
 
 4 F. & F. 43 58 
 
 L. & C. 604 *213 
 
 v. Vaughton 8 C. & P. 252 ' ' 390 
 
 Robson, R. v L. & C. 93 ! 152 
 
 Roche, R. v 1 Leach, 134 .^ ^ 
 
 Rockfield, R. v MSS. C. S. G ' 815 
 
 Roderick, R. v 7 C. & P. 795 196 
 
 Rogers, R. v 2 M. C. C. R. 85 209 
 
 7 Mod. 28 194 
 
 v. Sir G. Clifton 3 Bos. & P. 587 ... . 608 
 
 Rogier, R. v 1 B. & C. 272 741 
 
 Rolls v. St. George's Vestry .... 14 Ch. D. 785 835 
 
 Roper, R. v 6 M. & S. 327 336 
 
 . S. v 1 Dev. & Bat. 208 ' 750 
 
 Rose's case 1 Leach, 342 289 
 
 Rose v. Barden 1 H. Black. 356 811 
 
 v. Miles 4 M. & S. 101 ' 732 
 
 , R- v 2 Cox, 329 '266 
 
 , S. v 32 Mo. 560 748 
 
 Rosenstein, R. v 2 C. & P. 414 ' 633 
 
 Ross, S. v 4 Jones (Law), 315 .' .' .' .'..'" 722 
 
 Rouse v. Bardin 1 H. Bl. 351 .' 810 
 
 , R- v . 4 Cox, 7 " 409 
 
 °- S 4 Geo. 136 207 
 
 Rouverard, R. u cited 1 Den. C. C. 338; 2 C. & K. 933 .' ' 750 
 
 Rowed, R.v 3 Q. B. 180 750 
 
 Rowland, R. v 1 F. & F. 72 386 541 
 
 Rowlands, R. v 17 Q. B. 671 .... 492, 494, 496, 508,' 969 
 
 - — r a 5 Cox ' 436 532, 539 
 
 Rowley, R. v R. & M. C. C. R. Ill 379 381 
 
 , S. v 12 Conn. 101 ..... . '491 
 
 Roxburgh, R. v 12 Cox, 8 ' ' ' 413 
 
 Roy v. Eyres 1 Sid. 307 ' ' ' 425 
 
 Royce, R. i- 4 Burr. 2073 .' 557 573 
 
 Royson's case Cro. Car. 146 ' 319, 
 
 Ruck, R. i- MSS. C. S. G 5 
 
 Rugby Charity v. Merryweather . . 12 East, 375 763 
 
 Ruggles, C. v 6 Allen, 588 ! ' ' 787 
 
 Ruhl, S. v 8 Clarke, 447 195. 
 
 Rumble, R. v 4 F. & F. 175 250 
 
 Runnells, C. v 10 Mass. 518 '553 
 
 Russell's (Lord W.) case 9 St. Tr. 578 ' ' ' 535 
 
 Russell v. Men of Devon 2 T. R. 667 ' ' ' 873 
 
 . R- v R. & M. C. C. R. 356 .' ' 173 185 
 
 6 B. & C. 556 734, 791, 846, 847 
 
 6 East, 427 786 
 
 3 E. & B. 942 819, 820, 846, 878 
 
 1 Cox, 81 919 
 
 ?•. Shenton 3 Q. B. 449 756 811 
 
 ]{ »st' P- i- 1 Caines, 130 '423 
 
 Ryalls v. Leader 35 L. J. Ex. 185 602 
 
 ~ ■/■]* 11 Q- B. 178 345,353,366,396 
 
 Rycroft, R.v 6 Cox, 76 540 
 
 Ryland, R.v MSS. C. S. G ' 45 
 
 Rymer, R.v 2 Q. B. D. 136 ' 740 
 
 Ryoies, R.v 3 C. & K. 326 .' ' ' ' 61
 
 Table of Cases. lxiii 
 
 S. 
 
 Page 
 
 Saeheverell, R. v 15 Sta. Tri. 466 640 
 
 Sadbury, 11. v 1 Ld. Raym. 484 584 
 
 Sainsbury, R. v 4 T. R. 457 200 417 
 
 Saintiff, R v 6 Mod. 255 ! . . ' 761 
 
 Salisbury, R. t- 1 Ld. Raym. 341 000 
 
 (Marquis of), v. Great North- 
 ern Railway Co 5 C. B. (N. S.) 174 763 
 
 Salmon's case B. R. Hil. 1777 630 
 
 Salmon, R. v R. & M. 292 193 
 
 Salop (Inhab.), R. v 13 East, 97 855 
 
 Salwick, R. v 2 B. & Ad. 136 824 
 
 Sam, S. v 1 Wis. 300 117 
 
 Saino v. R 2 Cox, 178 440 
 
 Sanchar's (Lord) case 9 Co. 117 188 
 
 Sanders, R. v 9 Q. B. 235 . . 744 
 
 1 L. R. C. C. R. 75 307 
 
 Sanderson, R. v 1 F. & F. 598 952 
 
 Sandon, R. v 3 E. & B. 547 809 
 
 Sandoval, R. v 16 Cox, 206 254 
 
 Sankey, R. v 3 Q. B. D. 379 459 
 
 Santos v. Illidge 8 C. B. (N. S.) 861 471 
 
 Sargent, R. v 5 Cox, 499 89 
 
 Sarmon, R. v I Burr. 516 786 
 
 Sattler, R. v D. & B. C. C. 525 19, 21, 100 
 
 Saunders v. Mills 6 Bing. 213 001 
 
 , R. v 1 Q. B. D. 15 748 
 
 45 L. J. M. C. 11 748 
 
 Savage, R. v 13 Cox, 178 715 
 
 Savile v. Roberts 1 Ld. Raym. 378 . 491 
 
 Sayer v. Glossop 2 Exc. Rep. 409 694 
 
 Scadding, R. ?; Yelv. 134 907 
 
 Scarisbrick, R. v 6 Ad. & E. 509 795 
 
 Scarrett v. Tanner Owen, 105 591 
 
 Scattergood v. Sylvester 15 Q. B. 506 89 
 
 Schlesinger, R. v 10 Q. B. 070 294, 342, 359, 385 
 
 Sclileter, R. v 10 Cox, 409 139 
 
 Schofield's case Cald. 397 195 196 
 
 Schwinge v. Dowell 2 F. & F. 845 '762 
 
 Scole, R. v Peake N. P. R. 112 334 
 
 Scott, R. v 1 Leach, 401 50 
 
 13 Cox, 594 357 
 
 3 Burr. 1262 513, 584 
 
 2 Q. B. D. 415 385 
 
 2 Q. B. 248 942 
 
 3 Q. B. 543 792, 875 
 
 v. U. S Morris, 142 553 
 
 v. Frith 4 F. & F. 349 730 
 
 Scotton, R. v 5 Q. B. 493 305, 307, 310, 950 
 
 Searle, R. v 1 M. &. Rob. 75, 123 137 
 
 Sears, S. v 16 Ind. 352 659 
 
 Seaton, R. v Cox, 78 100 
 
 Seberg, R. v L. R. 1 C. C. R. 264 22 
 
 Sedford, R. v Gilberts Rep. 297 616 
 
 Sedley (Sir Charles), R. v Sid. 168; 1 Kebl. 620 194,617,751 
 
 Sellers, S. v 7 Rich. 368 423 
 
 Selsby, R. v 5 Cox, 495 966 
 
 Serjeant, R. v R. & M. N. P. R. 352 507, 528 
 
 Serva, R. v 1 Den. C. C. 104 ; 2 C. & K. 53. . . . 18,469 
 
 Seven Bishops' case 12 St. Tr. 183 598, 640 
 
 Sevem^and Wye Railway Company, » 2 R & A[d m m 
 
 Seward, R. v 1 Ad. & E. 706 . . . . 203, 492, 503, 514, 516 
 
 Sewell, R. v 8 Q. B. 101 888 
 
 v. S 61 Ga. 426 718 
 
 Shannon v. P 5 Mich. 71 170 
 
 Sharp v.C 2 Binn. 214 595
 
 lxiv Table of Cases. 
 
 Page 
 
 Sharp, S. v 1 Peters C. C. 122 260 
 
 Sharpe's case 2 Lew. 233 6 
 
 Sharpe, R. v D. & B. C. C. 160 936 
 
 3 Cox, 288 557 
 
 Dears. C. C. 415 6 
 
 Sharpless, 11. v 4 T. R. 777 204 
 
 Sharpness, R. v 2 T. R. 48 825 
 
 Sliarrock v. Hannemer Cro. Eliz. 375 591 
 
 Slmttufk v. Woods 1 Pick. 171 425 
 
 Shaw, R. v R. & R. 526 910, 911 
 
 34 L. J. M. C. 169; L. & C. 579 . . 300,303 
 
 368, 370 
 
 v. Morley L. R. 3 Ex. 137 745 
 
 Shebbeare's (Dr.) case Holt on Libel, 88 618 
 
 Shed, C. v 1 Mass. 227 425 
 
 Sheen, R. v 2 C. & P. 634 44, 46, 50 
 
 Sheering, 11. v 7 C. & P. 440 99 
 
 Sheffield Canal Co., R. v 13 Q. B. 913 794 
 
 (Inhab.), R. v 8 T. R. 106 794 
 
 , R. v 2 T. R. Ill 812 
 
 Shellard, R. v 23 Q. B. D. 273 451 
 
 9 C. & P. 277 530 
 
 Shellev v. Bethell 12 Q. B. D. 11 743 
 
 Shepherd, R. v 11 Cox, 325 547, 966 
 
 Sheppard, R. v 9 C. & P. 121 167 
 
 Sherlock, R. v 35 L. J. M. C. 92 590 
 
 Sherwin's case 1 East, P. C. 421 290 
 
 Shiles, R. v 1 Q. B. 919 779 
 
 Shillits v. Thompson 1 Q. B. D. 12 275 
 
 Shipley u. Todhunter 7 C. & P. 680 634 
 
 Shott, R. v 3 C. & K. 206 59 
 
 Shrewsbury's (Karl of) case . . . 9 Co. 50 419 
 
 Shrewsbury (Gaoler of), R. f. . . . lStr.532 894 
 
 Shrimpton, R. v 2 Den. C. C. 319 73, 238 
 
 Shuttleworth, R. v 2 Den. C. C. 351 68 
 
 Sichel v. Lambert 15 C. B. (N. S.) 781 695 
 
 Silcot, R. v 3 Mod. R. 280 231 
 
 Sill, R. v 22 L. J. M. C. 41 38 
 
 Silverton, R. v 1 Wills. 298 819 
 
 Simmons, R. v Bell, C. C. 168 304,306 
 
 8 C. & P. 50 308 
 
 Simmonsto, R. v 1 C. & K. 164 715 
 
 Simms, S. v 71 Mo. 538 139 
 
 Simpson R. v C. & M. 669 567,568 
 
 MSS. C. S. G 962 
 
 10 Mod. 248 392 
 
 v. Lamb 7 E. & B. 84 481 
 
 Wells 41 L. J. M. C. 105 758 
 
 " v. Yeend 38 L. J. 213, 313 446 
 
 Sinclair v. Baggaley 4 M. & W. 313 716 
 
 Skeet. R. v 4 F. & F. 931 168 
 
 Skerrit, R. v 2 C. & P. 427 242 
 
 Skinner, R. v 5 Esp. 219 803 
 
 v. Kitch 10 Cox, 493 .973 
 
 Slanev. R. v 5 C. & P. 213 ..642 
 
 Slator, R. v 8 Q. B. D. 267 454 
 
 Slaughter, R. v Cald. 246 418 
 
 Smith's case 1 Leach, 288 189 
 
 2 Leach, 856 241 
 
 Smith, v. Beeler 1 Brev. 482 240 
 
 v. C 6 B. Mon. 22 739 
 
 , C. v • • 11 Allen, 243 381 
 
 v. Howden 14 C. B. (N. S.) 398 703 
 
 v. Maxwell R. & M. N. P. B. 80 700 
 
 v. Myers 41 Md. 425 296 
 
 P. v 31 Cal. 466 138 
 
 . P 25 111. 17 491 
 
 , R. v 1 Cox, 260 115 
 
 2 Cox, 233 173 
 
 1 L. & C. 131 206
 
 Table of Cases. Ixv 
 
 Page 
 
 Smith, R. v 3 Cox, 443 266 
 
 1 F. & F. 36 59, 665 
 
 L. R. 1 C. C. II. 110 304 
 
 1 F. & F. 98 313, 337, 359, 379 
 
 37 L. J. M. C. 6 387 
 
 R. & R. 368 954 
 
 1 D. & B. 553 147 
 
 11 Cox, 210 306 
 
 Dougl. 441 '201,843 
 
 R. & R. 368 289 
 
 lBott. 415; PI. 461 420 
 
 1 Str. 704 753 
 
 4 Esp. Ill 758 
 
 MSS. Bayley, J. 1788 890 
 
 (John), U.v 4F.&F. 1099 683 
 
 v. Scott 2 C. & K. 580 601 
 
 v. Thomasson 16 Cox, 740 547 
 
 v. Wood 2 Campb. 323 634 
 
 Smollet, R. v Holt on Libel. 224 627 
 
 Smvth, R. v 1 M. & Rob. 155; 5 C. & P. 201 . 721,723,726 
 
 Smvthies, R. v 1 Don. C. C. R. 4 ( J8 665 
 
 Snape, R. v 2 East, P. C. 807 10 
 
 Snelling, C. v 15 Pick. 337 647 
 
 Snow v. Hill 14 Q. B. D. 588 746 
 
 , S. v 18 Me. 346 556 
 
 Soares, R. v R. & R. 25 166, 174 
 
 Soley, R. v 11 Mod. 116 553 
 
 2 Salk. 593 584 
 
 Solomon, R, v R & M. N. P. R. 252 336 
 
 v. Lawson 8 Q. B. 823 632 
 
 Somerset's (Earl of) case 19 St. Tri. 804 172 
 
 Somerset (Inhab.), R. v 16 East, 305 867 
 
 Somersetshire, R. v 3 Law T. 316 807 
 
 Somerville's case 1 And. 107 140, 146 
 
 Somerville v. Hawkins 10 C. B. 583 607, 612 
 
 Soper, R. v 3 B. & C. 857 888 
 
 Souter, R. v 2 Stark. 423 366 
 
 Southampton, R. v 17 Q. B. D. 424 855, 870 
 
 19 Q. B. D. 590 795, 819, 855, 865 
 
 18 Q. B. 841 853, 857, 866 
 
 Southern, R. v R. & R. 444 954 
 
 Southerton, U.v 6 East, 126 195, 415 
 
 Southey, R. v 4 F. & F. 864 136, 140 
 
 South wood, R. v IF. & F. 356 313,381 
 
 Sparrow v. Reynold Bac. Ab. Offices 435 
 
 Spencer v. Amerton 1 M. & Rob. 470 609 
 
 , R. v R. & M. N. P. R. 97 ; 1 C. & P. 260 . 338, 381, 403 
 
 1 C. & K. 159 71 
 
 ■ 3 F. & F. 854-857 948 
 
 Spice's case 1 Leach, 343 290 
 
 Spisjurnal's case 1 Hale, 26 115 
 
 Spill v. Maule 38 L. J. Ex. 138 613 
 
 Spiller v. Johnson 6 M. & W. 570 31 
 
 Spragg, R. v 2 Burr. 993 491, 494, 515, 521, 543 
 
 Sprye o. Porter 7 E. & B. 58 485 
 
 Squire, R. v MSS. 38 151 
 
 St. Andrews, R. v 1 Mod. 112 813,814 
 
 St. Benedict, R. v 4 B. & Aid. 447 767, 795, 864 
 
 St. George's (Hanover Square) . . 3 Campb. 222 794, 814 
 
 St. Giles (Cambridge), R. v. ... 5 M. & S. 260 799 
 
 St. Giles in the Fields, R. v. ... 11 Q. B. 173 665 
 
 St. Helen's Smelting Company, Lim- 
 ited v. Tipping ^ 35 L. J. Q. B. 67 . . 732 
 
 St. John Delpike, R. v 2 B. & Ad. 226 667 
 
 St. Mary's (Newington), Vestry of, 
 
 v. Jacobs 41 L. J. M. C. 72 770 
 
 St. Pancras, R. v Peake R. 219 798, 817, 818 
 
 St. Peter's (York), R. v 2 Ld. Raym. 1249 861 
 
 St. Weonards, R. c 6 C. & P. 582 810 
 
 5 C. & P. 579 813 
 
 vol. i. — e
 
 lxvi Table of Cases. 
 
 Page 
 
 Stacey v. Whitehurst 18 C. B. (N. S.) 344 956 
 
 Stafford's (Lord) case 7 St. Tr. 1218 535 
 
 Stafford (Marquis of) v. Coy ney . . 7 B. & C. 257 768 
 
 Stainhall, K. v 1 F. & F. 363 823 
 
 Stalcup, S. v 1 Ire. 30 556 
 
 Staneliffe, R. v 11 Cox, 318 86, 89 
 
 Standlev, R. v Russ. & Rv. 305 167 
 
 Stanger, R. v 4 L. J. Q. B. 96 639 
 
 Stanley ». Jones 7 Bing. 377 482, 484 
 
 , R. v R. & R. 432 905 
 
 Stannard, R. v L. & C. 349 758 
 
 Stanton, R. v 7 C. & P. 431 88 
 
 , S. v 37 Conn. 421 195 
 
 Stapylton, R. v 8 Cox, 69 540 
 
 Starling, R. v 1 Sid. 174 500 
 
 Stead o. Poyer 1 C. B. 782 962 
 
 , R. v 8 T. R. 142 755, 759, 820 
 
 Steel's case 1 Leach, 451 . , 119 
 
 Steel v. Prickett 2 Stark. R. 469 802 
 
 , R. v 2 M. C. C. R. 246 .536 
 
 1 Q. B. D. 402 651 
 
 , S. v 106 N. C. 766 740 
 
 Stein v. S 37 Ala. 123 074 
 
 Stephens, R. v 1 L. R. Q. B. 702 .... 758 
 
 Stephenson, R. v 13 Q. B. I). 331 943 
 
 Sterling, R. v 1 Lev. 125 514 527 
 
 Sterry v. Clifton 9 C. B. 110 ' 440 
 
 Stetson, P. v 4 Barb. 151 506 
 
 Stevens v. Bagwell 15 Ves. 139 484 
 
 v. Clark 1 Car. & M. 509 305 
 
 , R. r 5 B. & C. 246 344 
 
 Stevenson, R. v 3 F. & F. 106 275 
 
 Steventon, R. v 2 East, R. 362 487 497 
 
 1 C. & K. 55 '810 
 
 Stewart v. Dunn 12 M. & W. 655 31 
 
 , R. v R. & R. 288 198, 633 
 
 12 A. & E. 773 937, 938 
 
 Steyning (Inhab.), R. v Say. 92 809 
 
 Stiles v. Nokes 7 East, 493 600 
 
 Still, C. v 83 Ky. 275 296 
 
 Stockbridge v. Quicke 3 C. & K. 305 700 
 
 Stockdale v. Hansard 9 A. & E. 1 605 606 
 
 , R. v M. S '621 
 
 Stockport Water W. C. v. Potter . . 7 H. & N. 160 731 
 
 Stockwell v. North Noy, 102 433 
 
 Stokes, R. v 5 C. & P. 148 906 
 
 3C. &K. 185 129 
 
 Stolady, R. v 1 F. & F. 518 392, 393 
 
 Stone v. Jackson 16 C. B. 199 767 
 
 , R. v 4C.&P.379 412 
 
 1 Cox, 70 237 
 
 Dears. C. C. 251 299 304 
 
 6T. R. 527 529 
 
 Stonnell, R. v 1 Cox, 142 71 
 
 Storr, R. v 3 Burr. 1699 204, 205 
 
 Stotesbury v. Smith 2 Burr. 924 '426 
 
 Stoughton, R. v 2 Saund. 160 . . 785, 802, 803, 809, 812, 816 
 
 Stoveld, R. v 6 C. & P. 489 385 
 
 Stowell, R. v 5 Q. B. 44 37 
 
 Straight v. S 39 Ohio St. 496 380 
 
 Strand B. of W., R. v 4 B. & S. 526 763 
 
 Stratford-upon-Avon (Mayor of), R. r. 14 East, 348 859 
 
 Stratton. C. v 114 Mass. 303 204 
 
 , R. ?' 1 Campb. 549 510 
 
 Strauss v. Francis 4 F. & F. 1107 606 
 
 Straw S. v 33 Me. 554 553 
 
 Stretford (Inhab.), R. v 2 Ld. Ravm. 1169 798 
 
 Stroulger, R. v 17 Q. B. D. 327 38..450 
 
 Stuart v. Lovell 2 Stark. R. 93 606, 642, 643 
 
 Stuhbs '-. Director of Public Prosecu- 
 tions 24 Q. B. D. 577 4, 107
 
 Table of Cases. lxvii 
 
 Page 
 
 Studd, R. v 14 W. R. 806 718 
 
 Sturge, R. v 3 E. & B. 734 59,61,813 
 
 Sudbury, R. v 1 Ld. Raym. 484 512 
 
 Sullivan v. Sullivan ,2 Hagg. C. R. 254 . 689 
 
 , R. v 11 Cox, 44 698 
 
 Sulston v. Norton 3 Burr. 1235 455 
 
 Summers, R. v 38 L. J. M. C. 62 74 
 
 Sunderland's case 1 Lew. 109 703 
 
 Surrey Canal Company v. Hall . . 1 M. &Gr. 392 764,768 
 
 Surrey (Inhab.), R. v 2Campb.455 872,877 
 
 (Justices of), R. v 1 Bail. C. C. 70 823 
 
 39 L. J. M. C. 145 776, 833 
 
 Surtees v. Ellison . . 9 B. & C 752 205 
 
 Sussex Peerage case 11 CI. & F. 85 699 
 
 Sutcliffe, R. v Russ. & Ry. 469 925 
 
 Sutton's case R. T. H. 370 ; 2 Str. 1074 198, 230 
 
 Sutton v. Moody I Ld. Raym. 250 944 
 
 R. v 5 B. & Ad. 52 819, 878 
 
 3 Ad. & E. 597 811, 860, 875, 876 
 
 4 Burr. 2116 273 
 
 8 Ad. & E. 516 869 
 
 4 M. & S. 532 642 
 
 13 Cox, 648 955, 961 
 
 v. S 9 Ohio, 133 195 
 
 Svvaits, S. v 8 Ind. 524 195 
 
 Swift Run Gap Turnpike, C. v. . . 2 Va. Cas. 362 874 
 
 Sydaerff v. R 11 Q. B. 245 514, 518 
 
 T. 
 
 Tabart v. Tipper 1 Campb. 350 606, 640 
 
 Taggart, R. v 2 Cox, 50 704 
 
 Tancock, R. v 13 Cox, 217 42 
 
 Tandy's case 2 Leach, 833 241 
 
 Tanner, R. v , . . . 2 Ld. Raym. 1284 579 
 
 1 Esp. 304 203 
 
 Tapsell v. Crosskey 7 M. & W. 441 945 
 
 Tardiff v. S 23 Texas, 169 160 
 
 Tarrant, 11. v 4 Burr. 2106 418, 502 
 
 Tarry v. Ashton 1 Q. B D. 314 790 
 
 Tattersall, R. v MSS. Bayley, J. & R. & R. 113 .... 162 
 
 Tattershall's case cited 2 Leach, 983 241 
 
 Taunton's case 10 M. & H. 183 446 
 
 Taunton v. Costar 7 T. R. 431 719,721 
 
 , St. Mary, R. v 3 M. & S. 465 819, 825 
 
 v. Wyvorn 2 Campb. 299 696 
 
 Tawney's case 16 Vin. Ab. 415 418, 419 
 
 Taylor v. Brown 3 Stark. Evid. 861 384 
 
 , C. v 5 Binn. 277 205 
 
 v. Cole 3 T. R. 295 718 
 
 v. Hawkins ....... 16 Q. B. 308 607, 612 
 
 , R. v 44 L. J. M. C. 67 171 
 
 5 C. & P. 301 101 
 
 2 Str. 1167 734 
 
 3 B. & C. 502, 612 42, 49, 741 
 
 7 C. & P. 266 951 
 
 3 Burr. 1679 152 
 
 Vent. 293 614 
 
 1 Leach, 37 506 
 
 15 Cox, 8 53, 495 
 
 1 Campb. 404 335, 363 
 
 Skin. 403 340,382 
 
 6 Cox, 58 391 
 
 •, S.v 2 Bailey, 49 180 
 
 v. S 22 Ala. 15 587 
 
 v. Smetten 11 Q. B. D. 207 754 
 
 Teal, R. v 11 East, 307 543
 
 lxviii Table of Cases. 
 
 Page 
 
 Temperton v. Russell (1893) 1 Q. B. 715 492 
 
 Tbackham, S. v. . . 1 Bay. 358 55;j 
 
 Thackrah v. Seymour 3 Tyrw. 87 . . 781 
 
 Thallman, R. v L. & C. 336 748 
 
 Thomas, R. v MfSS. Bayley, J 566 
 
 7 C. & P. 817 144 
 
 4 C. & P. 237 566 
 
 ■ 2 C. & K. 80b 338 
 
 1 C. & P. 472 540 
 
 C. T. H. 278 66 
 
 1 Cox, 44 102 
 
 L. R. 2 C. C. R. 141 237 
 
 7 E. & B. 399 773, 796 
 
 Thompson's case 2 Lew. 137 119 
 
 Thompson, R. v 16 Q. B. 832 512,541 
 
 2 M. & Rob. 355 458 
 
 1 Den. C. C. 549 156 
 
 1 Cox, 43 106 
 
 20 L. J. M. C. 13 285 
 
 Thomson, R. v 2 T. R. 18 303 
 
 Thorley v. Lord Kerry 4 Taunt. 355 607, 626 
 
 Thornhill, R. v 8 C. & P. 575 366 
 
 Thornton, R. v 2 Cox, 493 888 
 
 Thorogood, R v. 8 Mod. 179 368 
 
 Thorpe's ease 1 Leach, 396 928 
 
 Tibshelf, R. v 1 B. & Ad. 190 688 
 
 Tierney, R. v R. & R. 74 259 
 
 Tiller, R. v 2 Leach, 671 906,910 
 
 Tilson, R. v 1 F. & F. 54 695 
 
 Timothy, R. v 1 F. & F. 39 508 
 
 v. Simpson 5 Tyrw. 244 . 590, 591 
 
 Tindall, R. v 6 Ad. & E. 143 734,846 
 
 Tippett, 11. i 3 B. & A. 192 783 
 
 Tobin, C. v 108 Mass. 426 318 
 
 Todd v. Flight 7 C. B. (X. S.) 377 757 
 
 v. Hawkins 8 C. & P. 88 611,612 
 
 Tolfree, R. v R. & M. C. C. R. 243 155 
 
 Tolson, R. v 23 Q. B. D. 168 660,714 
 
 Tollett, R. v C. & M. 112 156 
 
 v. Thomas L. R. 6 Q. B. D. 514 754 
 
 Tomlinson, R. v 7 C. & P. 183 . . 951 
 
 36 L. J. M. C. 41 297 
 
 Tongue v. Tongue 1 Moore, P. C. 90 689 
 
 Toogood v. Spy ring 4 Tvrw. 582 609 
 
 Tooley, R. v 2 Ld. Raym. 1301 591 
 
 Topham, R. v 4 T. R. 126 629, 638, 642, 645 
 
 Topping, R. v Dears. C. C. 647 659 
 
 Torpey, R. v 12 Cox, 45 145, 151, 153 
 
 Torry v. Field 10 Verm. 353 491 
 
 Tovey v. Lindsay 1 Dow's Rep. 117 663 
 
 Towey, R. v 8 Cox, 328 369 
 
 Towle, R. v R. & R. 314 162 
 
 Townley, R. v 3 F. & F. 839 134 
 
 Townsend, P. v 3 Hill, 479 113 
 
 R. v Dougl. 421 817,821 
 
 10 Cox, 356 315 
 
 4 F. & F. 1089 648 
 
 Townson r. "Wilson 1 Campb. 396 422 
 
 Trafford, R. r.; 1 B. & Ad. 874 845 
 
 v. R 8 Bingh. 204 846 
 
 5 E. & B. 967 808 
 
 Train, R. v 2 B. & S. 640 788 
 
 Tranter, R. v 1 Str. 499 791 
 
 Trask, S. v 42 Vt. 152 381 
 
 Tread well, R. v MSS. Bayley, J 924 
 
 Treharne, R. v B. & M. 298 665 
 
 Tremcarne, R. v R. & M. N. P. R. 147 30< 1,367 
 
 Truman's case 1 Fast, P. C. 470 714 
 
 Tuchin, R. v Holt's R. 424 623 
 
 Tucker, R. r 2 C. & P. 500 389
 
 Table of Cases. lxix 
 
 Page 
 
 Tucker, R. v 2 Q. B. D. 417 743 
 
 Tucket, 11. v 1 Cox, 103 138 
 
 Tuckwell, R. v C. & M. 215 164 
 
 Turner's case Kel. 30 40 
 
 Turner, R. v 2 M. C. C. R. 42 214 
 
 1 Leach, 536 36 
 
 13 East, 228 508, 509, 516 
 
 3 Cox, 304 955, 960 
 
 12 Cox, 313 458 
 
 2 C. & K. 732 382, 383, 384, 386 
 
 R. & M. C. C. R. 347 189, 190 
 
 R. & M. C. C. R. 239 48 
 
 v. Meymott 1 Bing. 158 717, 721, 723 
 
 v. Morgan 44 L. J. M. C. 161 949 
 
 v. Postmaster-General ... 5 B. & S. 756 303, 304 
 
 Turton, R. v 6 Cox, 385 140 
 
 Turweston, R. v 16 Q. B. 109 810 
 
 Tuson v. Evans 12 A. & E. 733 609 
 
 Tweed v. Liscomb 15 Sickel's N. Y. C. A. 559 85 
 
 Twyning, R. v 2 M. & W. 894 661 
 
 Tyler, R. v 8 C. & P. 616 145 
 
 Tymmus, R. v 11 Cox, 645 57 
 
 Tyson, R. v 37 L. J. M. C. 7 308 
 
 U. 
 
 Uezzell, R. v 2 Den. C. C. 274 959, 961 
 
 United Kingdom Electric Telegraph 
 
 Company, R. <■ 6 Law T. 378 789, 791 
 
 Upton-on-Severn, R. v MSS. C. S. G., and 6 C. & P. 132 . . 805,811 
 
 Upton St. Leonards 10 Q. B. 827 809 
 
 Urlyn, R. v 2 Saund. 308 489,490 
 
 Useful Society, S. v 13 Vroom, 504 789 
 
 Usill v. Hales 3 C. P. D. 319 602 
 
 V. 
 
 Vaile, R. v 6 Cox, 470 448 459 
 
 Valler, R. v 1 Cox, 84 166 
 
 Vanderbilt, P. v 28 N. Y. 396 842 
 
 Vandercomb, R. v 2 Leach, 708 40 
 
 1 Leach, 712 50 
 
 Vanderstein, R. v 10 Cox, 177 162 
 
 Vann, R. v 2 Den. C. C. 325 936 
 
 Vantandillo, R. v 4 M. & S. 73 273 
 
 Varle, R. v 6 Cox, 470 448 
 
 Varley's case 1 Leach, 76 212 
 
 Vasel, S. v 47 Mo. 416 425 
 
 Vaughan's case 4 Burr. 2494 .... 197, 433, 435, 443, 444 
 
 Vaughan, R. v 1 Cox, 80 127 
 
 v. Taff Vale R. Co 5 H. & N. 679 789, 791 
 
 Vaux's case . . 4 Rep. 44 b 48,49 
 
 Veley, R. v 4 F. & F. 1117 608 
 
 Verrv v. Watkins 7 C. & P. 308 . 316 
 
 Verelst, R. v 3 Campb. 432 380 
 
 Vide, R. v Fitz. Cor. PI. 86 169 
 
 Vigol, U. S. v 2 Val. 346 145 
 
 Villars v. Monsley 2 Wils. 403 626 
 
 Vincent, R. v 9 C. & P. 91 492, 501, 502, 570 
 
 2 Den. C. C. 464 58 
 
 Virrier, R. v 12 Ad. & E. 317 365, 370, 395 
 
 Vooght v. Winch ....... 2 B. & Aid. 662 844 
 
 Vowchurch, R. v 2 C. & K. 393 823 
 
 Vreones, R. v (1891) 1 Q. B. 360 198
 
 lxx Table of Cases. 
 
 w. 
 
 Page 
 
 Waddington, R. v 1 B. & C. 26 614 
 
 1 East, 143 40?. 
 
 Wade v. Broughton 3 Ves. & B. 172 506 
 
 f r. „. IB. & Ad. 861 885 
 
 Wadle'y R v 4 M. & S. 508 057 
 
 Waite.R. v. ' 2Q. B. 600 117 
 
 Wakefield's case 2 Lew. 1, and 279 508, 509 
 
 Wakefield, Mayor of, R. v. . . . 20 Q. B. D. 810 834, 838 
 
 t s. v. 8 Mo. Ap. 11 625 
 
 Waldb'orough's case 1 Hale, 26 115 
 
 Walkden, R. v 1 Cox, 282 276 
 
 Walker v. Horner 45 L. J. M. C. 34 785, 786 
 
 v. Matthews 8 Q. B. D. 109 89 
 
 v. Mayor of London .... 38 L. J. M. C. 107 86 
 
 R „ 13 Cox, 94 884 
 
 ' ' 44 L. J. M. C. 169 199 
 
 ' 13 Cox, 94 201 
 
 ' 1 Leach, 97 910 
 
 2 M. & Rob. 446 51 
 
 ' * Dears. C. C. 358 591 
 
 „ R. . 8 E. & B. 439 353 
 
 Wall R v 2 Cox, 288 954 
 
 Wallace R v 2 M. C. C. 200 ; C. & M. 200 17, 186 
 
 ' 1 East, P. C. 186 949 
 
 4 Q. B. D. 641 776 
 
 Waller, R. v 3 Stark. Evid. 856 333 
 
 Wallingford v. Mutual Societv . . . 5 Ap. Cas. 685 755 
 
 Walsby v. Anley 30 L. J. M. C. 121 . 549, 971 
 
 Walter, R. t- 3 Esp. N. P. C. 21 636 
 
 v . Selfe 4 De G. & S. 315 731 
 
 Wandsworth Bd. of W. v. United Tele- 
 phone Co 13 Q. B.D. 904 835 
 
 Wannop, R. v Say. 142 726 
 
 Wans worth (Inhab.), U. v 1 B. & A. 63 819 
 
 Warburton, R. v 40 L. J. M. C. 22 511 
 
 Ward R v 4 Ad. & E. 384 734, 84b 
 
 1 .... 3 Cox, 279 380, 386 
 
 .... 6 C. & P. 366 387 
 
 1 Cox, 101 526 
 
 Warde, R. v Cro. Car. 266 784 
 
 Warden of the Fleet, R. v Holt, 133 513 
 
 Wardroper, R. v Bell C. C. 249 150 
 
 Warminster Local Bd. Re .... 25 Q. B. D. 450 838 
 
 Warne, R. v 1 Str. 644 203 
 
 Warner v. Fowler 8 Md. 25 29b 
 
 Warren, R. v MSS ™ *o? 
 
 v Warren 4 Tyrw. 850 609, 634 
 
 Warwick's (Earl of ) case 13 St. Tr. 1018 . 907 
 
 Wason v. Walter 38 L. J. Q. B. 34 600, 604, 612 
 
 Exp 38 L. J. Q. B. 302 511 
 
 Waterfield v. Bishop of Chichester . 2 Mod. 118 600 
 
 Waters, R. v 1 Den. C. C. 356 812 
 
 12 Cox, 390 902 
 
 8 Cox, 350 100 
 
 Watford, R. v 4 D. & L. 593 823 
 
 Watkin v. Hall 39 L. J. Q. B. 125 598 
 
 Watson's case 1 Salk. 45 • 202 
 
 R. & R. 468 890, 925 
 
 Watson v. Hall 46 Conn. 204 ■ 419 
 
 R v 2 Ld. Ravm. 856 855, 856 
 
 ' 2 Cox, 376 "49 
 
 2 Stark. C. 140 529 
 
 2 T. R. 206 596, 624, 640 
 
 .'.'....'..... 1 Campb. 215 641 
 
 Watts, R. v 1 Salk. 357 811 
 
 2 C. & P. 486 . . 733
 
 Table of Cases. lxxi 
 
 Page 
 
 Watts v. Fraser 7 A. & E. 223 639 
 
 , R. v 2 Esp. R. 675 848 
 
 1 B. & Ad. 166 283 
 
 Waully, R. v R. & M. C. C. R. 163 668 
 
 Waverton, R. v 17 Q. B. 562 811, 812 
 
 Wavertree, R. v 2 M. & Rob. 353 816, 878 
 
 Weatherstone v. Hawkins .... 1 T. R. 110 607 
 
 Weaver v. C 5 Casey, 445 192, 890 
 
 Webb, R. v M. C. C. R. 431 26 
 
 1 Ld. Ravm. 737 785 
 
 1 Den. C. C. 338 750, 751 
 
 v. Smith 4 B. N. C. 373 457 
 
 Webster, R. v Bell C.C. 154 358 
 
 IF. &F. 515 371 
 
 L. & C. 77 62 
 
 v. Watts 11 Q. B. 311 591 
 
 Weeks, R. v 1 L. & C. 18 232 
 
 Welch o. Nash 8 East, 394 779 
 
 , R. v 2 Den. C. C. 78 239 
 
 Carr. Supp. 56 . . 50 
 
 Weld v. Hornby 7 East, 199 734, 844 
 
 Welham, R. v 1 Cox, 192 196 
 
 Wellard, R. v 14 Q. B. D. 63 749 
 
 Wells v. Fletcher 5 C. & P. 12 715 
 
 Welsh, R. v 1 Leach, 364 212 
 
 R. & M. C. C. R. 175 5, 50 
 
 Welton, R. v 9 Cox, 297 57, 58 
 
 Weltje, R. v 2 Campb. 142 625- 
 
 Wentnan v. Ash 13 C. B. 836 610, 612, 634 
 
 Went, R. r R. & R. 359 28 
 
 Weslev, R. v 1 F. & F. 528 951 
 
 West, R. v 2 Cox, 237 244 
 
 v. Smith 1 T. & G. 825 632 
 
 Westleys, R. v Bell C. C. 193 383, 391, 403- 
 
 Westbury case 10 M. & H. 52 449 
 
 , R. v 8 Mod. 357 905 
 
 Western Counties Manure Co. v. ) . T t t? im M7 
 
 Lawes Chemical M. Co. J 4o L. J. Ex. 171 627 
 
 Western, R. v L. R. 1 C. C. R. 122 59, 307, 950 
 
 Westiness, R. v 1 Chit. Crim. L. 301 367 
 
 Westly, R. v Bell C. C. 193 57, 299 
 
 West mark, R. v 2 M. & Rob. 305 796, 810 
 
 Weston, R. v 4 Burr. 2507 797, 872 
 
 West Riding Yorkshire, R. v. . . . 2 East, 353 872 
 
 Wetheril, R. v Cald. 432 418 
 
 Wettor v. Junk 4 F. & F. 298 789 
 
 Whale, R. v 1 Cox, 69 237 
 
 Wharton, R. v 12 Mod. 610 843 
 
 Wheatland, R. v 8 C. & P. 238 373 
 
 Wheatley, R. v 2 Burr. 1125 202 
 
 Wheeler, R. v 7 C. & P. 170 186 
 
 Whilev, R. v 2 Leach, 983 241, 242 
 
 1 C. & K. 150 665 
 
 Whinehart v. S 6 Ind. 30 160 
 
 Whitaker, R. v 1 Den. C. C. 310 958 
 
 Whitechurch, R. v 24 Q. B. D. 420 492 
 
 AVhite v. Crisp 10 Exch. R. 312 848 
 
 v. Phillips 15 C. B. (N. S.) 245 846 
 
 , R. v Cald. 183 429 
 
 Russ. & Ry. 99 162 
 
 1 Burr. 337 733 
 
 2 Cox, 232 342 
 
 M. & M. 271 394 
 
 1 Campb. 359 625 
 
 3 Campb. 99 639, 645 
 
 v. R 13 Cox, 318 500 
 
 , S. v 7 Ired. N. C. 180 595, 647 
 
 Whitehouse, R. v 3 Cox, 86' 362 
 
 6 Cox, 38 504, 512, 536, 537 
 
 Whitehurst v. Fisher 17 Cox, 70 745, 746
 
 lxxii Table of Cases. 
 
 Page 
 
 Whiteley v. Adams 33 L. J. C. P. 89 609 
 
 v. Chapell 11 Cox, 307 458 
 
 Whitfield, R. v 3 C. & K. 121 119 
 
 Whitney, R. v 7 C. & P. 208; 3 Ad. & E. 69 . . 805,817,852 
 
 Whittemore, S. v 50 N. H. 245 394 
 
 Whvbrow, K. v 8 Cox, 438 387 
 
 Wigg, R. v Ld. Ray m. 1163; 2 Salk. 460 201 
 
 Wigges, K. v 4 Co. 45 42 
 
 Wilders, K. v cited 2 Burr. 1128 202 
 
 Wildey, R. v 1 M. & S. 182 50 
 
 Wilkes, R. v 2 Wils. 121 596 
 
 Wilks, R. v. 4 Burr. 2527 617 
 
 7 C. & P. 811 962 
 
 Willes v. Bridger 2 B. & A. 282 147 
 
 Williams's case 5 Co. 72 b 761 
 
 Williams v. East India Company . . 3 East, 192 786 
 
 v. Eyton 4 H. & N. 357 783 
 
 v. Glenister 2 B. & C. 699 654, 656 
 
 v. Lyons 8 Mod. 189 426 
 
 , R. v 2 Campb. 506 594 
 
 9 B. & C. 549 727 
 
 Talf. Dick. 377 727 
 
 4 M. & R. 483 727, 728, 729 
 
 2 Str. 1167 734 
 
 3 Burr. 1317 418 
 
 • . . 1 Den. C. C. 529 882 
 
 — — C. & M. 259 209 
 
 1 Salk. 384 151, 741 
 
 Dears. C. C. 547 197 
 
 7 Q. B. 250, 253 193 
 
 1 Leach, 536 85 
 
 1 Q. B. 320 117 
 
 Holt on Libel, 66 614, 615 
 
 5 B. & A. 597 629 
 
 2 Campb. 646 642 
 
 14 Cox, 59 955 
 
 v. S 14 Ohio, 222 117 
 
 11 S. & M. 68 174 
 
 2 Sneed, 160 423 
 
 v. Stott 1 C. & M. 675 632 
 
 v. Wilcox 8 Ad. & E. 314 842, 843, 851 
 
 Williamson v. Frere 43 L. J. C. P. 161 609 
 
 v. Henley 6 Bing. 299 480 
 
 Willis, R. v R. & M. C. C. R. 375 155 
 
 , 41 L. J. M. C. 104 74 
 
 Willoughby's case Cro. Eliz. 90 202 
 
 Wilson's case 1 Leach, 285 212 
 
 Wilson v. C 96 Pa. 56 509 
 
 , R. v 8 T. R. 357 717, 721, 725, 726 
 
 5Q. B. D. 28 118 
 
 3F. &F. 119 713 
 
 1 Ad. & E. 627 719 
 
 3 Ad. & E. 817 720, 730 
 
 18 Q. B. 348 797 
 
 D. & B. C. C. 127 173 
 
 , S.v 3 Miss. 125 205 
 
 30 Conn. 500 62, 161 
 
 v. S 1 Wis. 184 192, 207 
 
 (Clerk) v. Greaves .... 1 Burr. 240 653 
 
 Wilts (Inhab.), R v 1 Salk. 359 864 
 
 6 Mod. 307 877 
 
 Wiltshire, R. v 12 A. & E. 793 306 
 
 6 Q. B. D. 366 661 
 
 v. Wiltshire 3 Hagg. Ecc. R. 332 689 
 
 Winch, R. v 6 Cox, 523 59 
 
 v. Conservators of the Thames 41 L. J. C. P. 241 842 
 
 Windhill L. B. p. Vint 45 Ch. D. 351 413 
 
 Windsor case 10 M. & H. 2 446 
 
 Windsor, S. v 5 Harring. 512 138 
 
 Winfred and Gordon, R. v 1 Leach, 515 169, 171, 188
 
 Table of Cases. lxxiii 
 
 Page 
 
 Wing v. Taylor , 2 Swabey & T. 278 666 
 
 Wingfield, 11. v 1 Bl. K. 602 820 
 
 Winliow, R. v 5 Cox, 346 27 
 
 Winship, R. v Cald. 76 418, 419, 420 
 
 Winsor v. R 35 L. J. M. C. 121 52 
 
 Winter, R. v 2 Salk. 588 729 
 
 8 B. & C. 785 772, 775, 779 
 
 Winterbottom v. Earl of Dudley . . 36 L. J. Ex. 194 966 
 
 Withers, R. v 4 Cox, 17 391 
 
 Wolf, R. v 3 Cox, 578 743 
 
 Wollez, R. v 8 Cox, 337 88 
 
 Womersley's case 2 Lew. 102 K)o 
 
 Wood v. Bovvron 10 Cox, 344 972 
 
 o. Downes 18 Ves. 120 482 
 
 , R. v 5 Jurist, 225 5 
 
 3 B. & Ad. 057 742 
 
 IF. & F. 470 951 
 
 D. & B. C. C. 1 963 
 
 (Exeter, 1723) MS. Bailey, J 345 
 
 v. Veale 5 B. & Aid. 454 763, 764 
 
 Woodbeck v. Keller 6 Cow. 118 308 
 
 Woodfall's case Essay on Libels, 18 630 
 
 Woodfall, R. v 5 Burr. 2667 642 
 
 Woodfield, R. v 16 Cox, 314 945 
 
 Woodford v. Ashley 2 Campb. 193 333 
 
 Woodgate v. Potts 2 C. & K. 457 160 
 
 Woodman's case I Leach, 64 295 
 
 Woodward v. Lander 6 C. & P. 548 010, 612 
 
 , R. v 8 C. & P. 561 159 
 
 R. & M. C. C. 323 333 
 
 1 L. & C. 122 150 
 
 Woodyer v. Hadden 5 Taunt. 125 763, 764 
 
 Woolcock, R. v 5 C. & P. 516 573 
 
 Wooldridge's case 1 Leach, 397 239 
 
 Wooley, R. v 4 Cox, 452 103 
 
 Woolford, R. v 1 M. & Rob. 384 51 
 
 Woolraer, 11. v 12 A. & E. 422 639 
 
 Woolnoth v. Meadows 5 East, 463 596,632 
 
 Woolston, R. v 2 Str. 834 614, 615 
 
 Worcestershire, R. v 3 E. & B. 477 779 
 
 (Justices of), R. v 8 B. & C. 224 776 
 
 2 B. & A. 228 779 
 
 Worker, R. v R. & M. C. C. R. 165 956, 960 
 
 " World, The," R. v 13 Cox, 305 646 
 
 Worley, R. v 3 Cox, 535 311 
 
 Worton, R. v (1895) 1 Q. B. 227 Add. 
 
 Wright's case 1 Lew. 268 27 
 
 Wright v. Frant 32 L. J. M. C. 204 775 
 
 . R. v. . . , 1 Burr. 543 199, 201, 202 
 
 ' 3 B. & Ad. 681 768, 790, 806 
 
 1 Ad. & E. 434 811 
 
 R. & R. 456 137 
 
 2 F. & F. 320 60 
 
 v. R 14 Q. B. 148 515 
 
 8 T. R. 297 .... 600 
 
 , S.v 6 Jones, 25 740 
 
 v. Woodgate 1 T. & G. 12 607, 609, 612 
 
 Wrightson, R. v 2 Salk. 698 625 
 
 Wroxton, R. v 4 B. & Ad. 640 689 
 
 Wy at, R. v 1 Salk. 380 416, 419 
 
 Wyatt, R. v 39 L. J. M. C. 83 63 
 
 Wylde, R. v C. & P. 380 390 
 
 Wylie, R. v 1 New R. 95 490
 
 lxxiv 
 
 Table of Cases. 
 
 Yelverton 
 
 Yeoveley, li. v 
 
 York's case 
 
 Yorkshire (Justices of), R. v. 
 (West Riding of), R. v. 
 
 Page 
 
 Yarborongh, S. v. ....... 70 N. C. 250 718 
 
 Yarkhill, R. v 9 C. & P. 218 822 
 
 Yarnton, 11. v 1 Sid. 140 814 
 
 Yates, R.t- 14 Q. B. D. 648 .604 
 
 1 7 Cox, 361 95, 99 
 
 12 Cox, 233 595 
 
 ' ' C. & M. 132 318, 369 
 
 . . . '. 6 Cox, 441 542, 649 
 
 Yelverton 703 
 
 . 8 A. & E. 806 S87 
 
 . Fost. 70 117 
 
 . 7 T. R. 468 759, 820 
 
 . 7 B. & C. 678 778 
 
 . 4 B. & Ad. 685 778 
 
 4 B. & Aid. 623 800 
 
 ' ... 2 East, 342 800, 854, 855, 865, 872 
 
 ? Eag ^ 5g8 g69 
 
 2 East, note 863, 876 
 
 .' 2 B. & S. 811 . 779 
 
 Young's case cited 2 East, 14 197 
 
 . 1 Macq. Sco. Ap. C. 455 . . . . 761, 762, 773 
 
 . 3 T. R. 98 169 
 
 . MSS. Bayley, J 911 
 
 . cited 2 T. R. 734 497, 942 
 
 . 1 Burr. 556 417 
 
 . 2 Cox, 280 103 
 
 . cited 2 East, 14 444 
 
 . 5 Cox, 296 666,716 
 
 Young v. Cuthbertson 
 , R. v. ... 
 
 Z. 
 
 Zulueta, R. v 1 C. & K. 215 
 
 470
 
 A TREATISE 
 
 ON 
 
 CRIMES AND MISDEMEANORS. 
 
 BOOK THE FIRST. 
 
 OP PERSONS CAPABLE OF COMMITTING CRIMES, OF PRINCIPALS 
 AND ACCESSORIES, AND OF INDICTABLE OFFENCES. 
 
 CHAPTER THE FIRST. 
 
 GENERAL PROVISIONS. 
 
 Rules for Interpretation of Criminal Statutes. 
 
 By the Interpretation Act, 1889 (52 & 53 Vict. c. 63), which 
 repeals 7 & 8 Geo. 4, c. 28, s. 14, 'In this Act and in every Act 
 passed after the year one thousand eight hundred and fifty, whether 
 before or after the commencement of this Act, unless the contrary 
 intention appears, words importing the masculine gender shall include 
 females, and words in the singular shall include the plural, and words 
 in the plural shall include the singular. The same rules shall be 
 observed in the construction of every enactment relating to an offence 
 punishable on indictment or on summary conviction when the enact- 
 ment is contained in an Act passed in or before the year one thousand 
 eight hundred and fifty.' By sec. 2, ' In the construction of every 
 enactment relating to an offence punishable on indictment or on sum- 
 mary conviction, whether contained in an Act passed before or after 
 the commencement of this Act, the expression " person " shall, unless 
 the contrary intention appears, include a body corporate. 
 
 'Where, under any Act, whether passed before or after the com- 
 mencement of this Act, any forfeiture or penalty is payable to a party 
 aggrieved, it shall be payable to a body corporate in every case where 
 that body is the party aggrieved.' 
 
 The expression ' month ' means calendar month, (a) 
 
 (a) 52 & 53 Vict. c. 63, s. 3. A person corresponding to the one on which his sen- 
 sentenced to a month's imprisonment is en- tence takes effect. Migotti v. Colvill, 4 C. 
 titled to be discharged on the day in the P. D. 233. 
 next month immediately preceding the day 
 
 vol. i. — 1
 
 General Provisions. [book 
 
 Vexatious Indictments Acts, (b) 
 
 No indictment for certain offences to be preferred without previous 
 authorization. — By 22 & 23 Vict. c. 17, s. 1, no bill of indictment for 
 any of the offences following ; viz., — 
 
 Perjury, (c) 
 
 Subornation of perjury, 
 
 Conspiracy, 
 
 Obtaining money or other property by false pretences, 
 
 Keeping a gambling house, 
 
 Keeping a disorderly house, and 
 
 Any indecent assault, 
 shall be presented to or found by any grand jury, unless the prose- 
 cutor or other person presenting such indictment has been bound by 
 recognizance to prosecute or give evidence against the person accused 
 of such offence, or unless the person accused has been committed to 
 or detained in custody, or has been bound by recognizance to appear 
 to answer to an indictment to be preferred against him for such 
 offence, or unless such indictment for such offence, if charged to have 
 been committed in England, be preferred by the direction or with the 
 consent, in writing, of a judge of one of the superior courts of law at 
 Westminster, or of Her Majesty's attorney-general or solicitor-general 
 for England, or unless such indictment for such offence, if charged to 
 have been committed in Ireland, be preferred by the direction or with 
 the consent, in writing, of a judge of one of the superior courts of law 
 in Dublin, or of Her Majesty's attorney-general or solicitor-general 
 for Ireland, or (in the case of an indictment for perjury) by the 
 direction of any court, judge, or public functionary authorized by 
 an Act of the session holden in the fourteenth and fifteenth years 
 of Her Majesty, chapter one hundred, to direct a prosecution for 
 perjury. 
 
 Where prosecutor desires to prefer an indictment, justice to take 
 his recognizance to prosecute. — Sec. 2 provides that where any 
 charge or complaint shall be made before any one or more of Her 
 Majesty's justices of the peace that any person has committed any of 
 the offences aforesaid within the jurisdiction of such justice, and such 
 justice shall refuse to commit (d) or to bail the person charged with 
 such offence to be tried for the same, then in case the prosecutor shall 
 desire to prefer an indictment respecting the said offence, it shall be 
 lawful for the said justice, and he is hereby required to take the 
 recognizance of such prosecutor to prosecute the said charge or com- 
 plaint, and to transmit such recognizance, information, and depositions, 
 if any, to the court in which such indictment ought to be preferred, in 
 
 (b) See E. v. Heane, 33 L. J. M. C. 115. not committed with a guilt}' intent. See 
 
 (c) By 32 & 33 Vict, c. 62 (The Debtors vol. ii. By 44 & 45 Vict. c. 60, s. 6, ' Every 
 Act, 1869), 8. 18, every misdemeanor under libel or alleged libel and every offence under 
 the second part of this Act shall be deemed this Act shall be deemed to be an offence 
 to bean offence within and subject to the within and subject to the provisions ' of 22 & 
 above Act, 22 & 23 Vict. c. 17; and when 23 Vict. c. 17. 
 
 any person i< charged with any such offence (d) Or dismisses the case for want of 
 
 before any justice, lit- must take into eonsid- evidence. R. v. Lord Mayor of London, 16 
 
 eration any evidence adduced before him Cox, C. C. 77. 
 tending to shew that the act charged was
 
 cuap. I.] Vexatious Indictments Acts. 3 
 
 the same manner as such justice would have done in case he had com- 
 mitted the person charged to be tried for such offence.(e) 
 
 It seems that this section is confined to offences committed in 
 England. (/) 
 
 It is a matter for the discretion of the judge to whom the applica- 
 tion is made, under sec. 1, to decide what materials ought to be before 
 him, and it is not necessary to summon the party accused, or to bring 
 him before the judge in any way. Therefore, where some time after the 
 trial of an action, upon which perjury was alleged to have been commit- 
 ted, the accusing party appeared before the judge who tried the action, 
 and, producing a newspaper report of the trial, applied for a consent to 
 a prosecution being commenced, and the judge wrote upon the news- 
 paper report, ' I consent to a prosecution in this case,' it was held, that he 
 had rightly exercised the jurisdiction given by the above section.^/) 
 
 Where an indictment contained two counts, — one for obtaining 
 a shawl by false pretences on the 26th September; and another for 
 obtaining another shawl by false pretences on the 29th of the same 
 month, — and the prisoner had been only committed for obtaining the 
 shawl on the 26th of September, it was held, on a case reserved, that 
 the second count ought to have been quashed. (A) 
 
 Where three defendants were charged with a conspiracy before 
 a justice and bound by recognizances to appear at the next session 
 of the Central Criminal Court, to plead to such indictment as might 
 be found against them in respect of such conspiracy ; and the prose- 
 cutors and witnesses were in like manner bound to prosecute and give 
 evidence ; and at the next session of the court an indictment for 
 conspiracy was found against them ; but the trial was postponed, and 
 the recognizances respited, till the next sessions ; and before that ses- 
 sion the solicitor-general directed an indictment to be preferred against 
 another person for the same conspiracy ; and at that session another 
 indictment was found against all four defendants ; it was held that the 
 three first mentioned defendants were rightly tried, and convicted on 
 the second indictment, as the 22 & 23 Vict. c. 17, had been sufficiently 
 complied with, the second indictment being for the same conspiracy, 
 with which those defendants had been charged before the magistrate ; 
 and that the indictment need not allege that they had been bound 
 over by the magistrate. (i) 
 
 By 30 & 31 Vict. c. 35, after reciting that it is found that delay and 
 inconvenience are frequently caused by the provisions contained in the 
 first section of the Act 22 & 23 Vict. c. 17, in cases not within the 
 mischief for remedy whereof the same Act was made and passed, and 
 it is expedient to restrict the operation thereof, — it is enacted: — 
 
 Sec. 1. That the said provisions of the said first section of the 
 said Act shall not extend or be applicable to prevent the present- 
 
 (e) The 22 & 23 Vict. c. 17, s. 1, does (/) R. v. Heane, 33 L. J. M. C. 115. 
 
 not apply to the offence of 'attempting to (g) R. v. Bray, 32 L. J. M. C. 11 ; 3 
 
 obtain money or other property by false pre- B. & S. 255. 
 
 fences.' R. v. Burton, 13 Cox, C. C. 71. (h) R. v. Fuidge, 9 Cox, C. C. 430; 33 
 
 The Act applies to prosecutions under the L. J. M. C. 74 ; L. & C. 390 ; R. v. Davie?, 
 
 Criminal Law Amendment Act, 1885 (48 & ibid. note. 
 
 49 Vict. c. 69), see sec. 17, and to prosecu- (;') R. v. Knowlden, 9 Cox, C. C. 483 ; 
 
 tions under the Merchandise Marks Act, 33 L. J. M. C. 219. 
 1887 (50 & 51 Vict. c. 28 s. 13).
 
 4 General Provisions. [book i. 
 
 meut to or finding by a grand jury of any bill of indictment contain- 
 ing a count or counts for any of the offences mentioned in the said 
 Act, if such count or counts be such as may now be lawfully joined 
 with the rest of such bill of indictment, and if the same count or 
 counts be founded (in the opinion of the court in or before which the 
 same bill of indictment be preferred) (/) upon the facts or evidence 
 disclosed (Jc) in any examinations or depositions taken before a justice 
 of the peace, in the presence of the person accused or proposed to be 
 accused by such bill of indictment, and transmitted or delivered to 
 such court in due course of law ; and nothing in the said Act shall 
 extend or be applicable to prevent the presentment to or finding by 
 a grand jury of any bill of indictment, if such bill be presented to 
 the grand jury with the consent of the court in or before which the 
 same may be preferred. 
 
 Costs of unreasonable prosecution. — By sec. 2, whenever any bill of 
 indictment shall be preferred to any grand jury under the provisions 
 of the Act 22 & 23 Vict. c. 17, against any person who has not been 
 committed to or detained in custody, or bound by recognizance to 
 answer such indictment, and the person accused thereby shall be ac- 
 quitted thereon, it shall be lawful for the court before which such 
 indictment shall be tried, in its discretion to direct and order that the 
 prosecutor or other person by or at whose instance such indictment 
 shall have been preferred shall pay unto the accused person the just 
 and reasonable costs, charges, and expenses of such accused person 
 and his witnesses (if any) caused or occasioned by or consequent 
 upon the preferring of such bill of indictment, to be taxed by the 
 proper officer of the court ; (/) and upon nonpayment of such costs, 
 charges, and expenses within one calendar month after the date of 
 such direction and order, it shall be lawful for any of the superior 
 courts of law at Westminster, or any judge thereof, or for the justices 
 and judges of the Central Criminal Court (if the bill of indictment 
 has been preferred in that court), to issue against the person on whom 
 such order is made such and the like writ or writs, process or pro- 
 cesses, as may now be lawfully issued by any of the said superior 
 courts for enforcing judgments thereof. 
 
 Offences committed near Boundaries of Counties and during a 
 Journey or Voyage. 
 
 Some general provisions have been made with respect to offences 
 committed near the boundaries of counties, and during a journey 
 through several counties. 
 
 Offences committed on boundaries of counties may be tried in either 
 county. — The 7 Geo. 4, c. 64, s. 12, for the more effectual prosecution 
 of offences committed near the boundaries of counties, or partly in 
 one county and partly in another, enacts, 'that where any felony 
 
 (j) The leave of the court is not a mere (/) As to the costs to be paid by the di- 
 
 formality. See R. v. Bradlaugh, 15 Cox, rector of public prosecutions in such a case, 
 C. C 156. see 42 & 43 Vict. c. 22, s. 7, and Stnbbs v. 
 
 ik) See R. v. Bell, 12 Cox, C. C. 37. Director of Public Prosecutions, 24 Q. B. D. 
 
 577.
 
 chap. I.] Offences near Boundaries of Counties. 5 
 
 or misdemeanor shall be committed on the boundary or boundaries of 
 two or more counties, or within the distance of five hundred yards 
 of any such boundary or boundaries, or shall be begun in one county 
 and completed in another, every such felony or misdemeanor may be 
 dealt with, inquired of, tried, determined, and punished in any of the 
 said counties, in the same manner as if it had been actually and 
 wholly committed therein.' ( m) 
 
 Upon an indictment for manslaughter, found by the grand jury of 
 the county of the city of Worcester, alleging the blow which caused 
 the death to have been struck in the county of Worcester, it was 
 objected that the words, ' begun in one county and completed in 
 another,' did not apply to such a case, as the word ' completed ' neces- 
 sarily imported some active and continuing agency in the person 
 committing the offence in the county where the felony was completed ; 
 but it was held that the above clause did extend to this case, (n) 
 
 On the trial of an indictment for robbery at the Kent assizes, the 
 offence appeared to have been committed in Surrey, at a distance of 
 about 320 yards from the boundary of Kent and Surrey, as measured 
 by a direct line, but at considerably more than 500 yards by the 
 nearest road ; and Parke, B., held that the distance must be measured 
 in the direct line, and therefore the prisoner was triable in Kent, (o) 
 
 The above section only applies to trials in counties, and does not 
 extend to limited jurisdictions within counties. Where, therefore, a 
 larceny was committed in the city of London, but within five hun- 
 dred yards of the boundary of the county of Surrey and of the 
 borough of Southwark, it was held that the offence could not be 
 tried by the quarter sessions for the borough of Southwark. (j;) 
 
 Alterations by the Boundary Act. — It may be observed, that an 
 important alteration has been made in the boundaries of some counties 
 by the Boundary Act, 2 & 3 Will. 4, c. 64, and the Municipal Beform 
 Act, 5 & 6 Will. 4, c. 76 (q) ; so that if a felony be now committed 
 in that part of the county of a town, which has been added to it by 
 the Boundary Act and the Municipal Beform Act, it is triable within 
 the county of the town. The prisoner was indicted for wounding with 
 intent to do grievous bodily harm ; the offence was committed at a 
 place which was added to the borough of Haverfordwest, which is a 
 county of itself, by the Boundary Act, and declared by the Municipal 
 Beform Act to be part of the borough, the place in question not having 
 been within the borough before the passing of those Acts ; and it was 
 held that the prisoner might be tried by a jury of the borough, (r) 
 
 Offences committed during a journey or voyage. — By the 7 Geo. 4, C. 
 64, s. 13, ' where any felony or misdemeanor shall be committed on any 
 
 (wi) See R. v. Ruck, MSS. C. S. G., post, (p) R. v. Welsh, R. & M. C. C. R. 175. 
 
 vol. II. R. v. Mitchell, 2 Q. B. 636, iwst, (q) Repealed by 45 & 46 Vict. c. 50 ; but 
 
 vol. II. see sec. 228. See also 31 & 32 Vict. c. 46 ; 
 
 (v) R. v. Jones, Worcester Lent Ass. 48 & 49 Vict. c. 23. 
 1830, Jervis, K. C, MSS. C. S. G. Mr. (r) R. v. Piller, 7 C. & P. 337, Cole- 
 Bellamy, the clerk of arraigns, had con- ridge, J. In R. v. the Justices of Glouces- 
 sulted Littledale, J., about this case, and he tershire, 4 Ad. & E. 689, it was held that 
 thought that the indictment ought to be the effect of these statutes was to transfer 
 preferred in the city, and it had been so pre- the parts entirely and for all purposes out 
 ferred accordingly. C. S. G. of the one county into the other. 
 
 (o) R. v. Wood, 5 Jurist, 225 ; see 
 Moufiet v. Cole. 42 L. J. Ex. 8.
 
 6 General Provisions. [book i. 
 
 person, or on or in respect of any property in or upon any coach, 
 waggon, cart, or other carriage whatever employed in any journey, or 
 shall be committed on any person, or on or in respect of any property 
 on board any vessel whatever employed on any voyage or journey 
 upon any navigable river, canal, or inland navigation, such felony or 
 misdemeanor may be dealt with, inquired of, tried, determined, and 
 punished in any county, through any part whereof such coach, waggon, 
 cart, carriage, or vessel shall have passed, in the course of the journey 
 or voyage during which such felony or misdemeanor shall have been 
 committed, in the same manner as if it had been actually committed 
 in such county ; and in all cases where the side, centre, or other part 
 of any highway, or the side, bank, centre, or other part of any such 
 river, canal, or navigation shall constitute the boundary of any two 
 counties, such felony or misdemeanor may be dealt with, inquired of, 
 tried, determined, and punished in either of the said counties, through 
 or adjoining to, or by the boundary of any part whereof such coach, 
 waggon, cart, carriage, or vessel shall have passed, in the course of the 
 journey or voyage, during which such felony or misdemeanor shall 
 have been committed, in the same manner as if it had been actually 
 committed in such county.' 
 
 This enactment is general, and applies to any carriage whatever 
 employed in any journey. The prisoners were sent from the Great 
 Northern station in Middlesex with a waggon to "Woolwich in Kent, 
 and the usual quantity of oats for the horses was given out to them, 
 and put into the waggon in nosebags. The prisoners sold the oats 
 at Woolwich, and it was held that they were triable in Middlesex ; 
 for the object of the statute was to enable a prosecutor, whose prop- 
 erty is stolen from any carriage on a journey, to prosecute in any 
 county through any part of which the carriage shall have passed 
 in the course of that journey ; because, in many cases, it might be 
 quite impossible to ascertain at what part of the journey the offence 
 was actually committed, (s) 
 
 The prisoner had acted as guard of a coach from Penrith in Cumber- 
 land to Kendal in Westmoreland, and was entrusted with a banker's 
 parcel, containing bank-notes and two sovereigns ; on changing horses 
 at some distance from Penrith, he carried the parcel to a privy, and 
 while there took out of it the sovereigns : and Parke, B., held that as 
 the act of stealing was not ' in or upon the coach,' the case was not 
 within the statute, and the felony having been committed in West- 
 moreland, the indictment ought to be preferred in that county, (t) 
 
 Larceny on a journey by railway. — On an indictment for larceny 
 tried at Stafford, it appeared that the prosecutor travelled from Shrews- 
 bury to Shifnal, and afterwards missed a dressing-case which had been 
 in the carriage with him. The prisoner had accompanied the train, 
 and had stated that he had found the dressing-case in a first-class 
 carriage at Codsall, one of the stations on the line, and that he carried 
 it to the engine and gave it to another prisoner, who opened it with a 
 wrench, and on their return to Shrewsbury gave him some of the 
 articles as his share. The part of the line from Shrewsbury to Shifnal 
 is in Shropshire, but Codsall station is in Staffordshire. It was urged 
 
 (s) R. v. Sharpe, Dears. C. C. 415. (t) Sharpe's case, 2 Lew. 233.
 
 chap, i.] Offences near Boundaries of Counties. 7 
 
 that the prisoner's statement showed that the larceny was not com- 
 mitted during the journey ; for the removal of the dressing-case from 
 the carriage did not constitute the larceny, according to the prisoner's 
 statement, but it consisted in the distribution of the property at 
 Shrewsbury ; but Williams, J., held that there was evidence from 
 which the jury might find that the dressing-case was abstracted dur- 
 ing the journey ; as the evidence, with the exception of the prisoner's 
 statement, was consistent with either supposition, (u) 
 
 Detached parts of counties locally included in another county. — The 
 2 & 3 Vict. c. 82, s. 1, enacts, that ' it shall be lawful for any jus- 
 tice or justices of the peace acting for any county, to act as a justice 
 or justices of the peace in all things whatsoever concerning or in 
 any wise relating to any detached part of any other county, which is 
 surrounded in whole or in part by the county for which such justice 
 or justices acts or act ; and that all acts of such justice or justices of 
 the peace, and of any constable or other officer in obedience thereto, 
 shall be as good, and all offenders in such detached part may be 
 committed for trial, tried, convicted and sentenced, and judgment 
 and execution may be had upon them in like manner as if such 
 detached parts were to all intents and purposes part of the county 
 for which such justice or justices acts or act; and all constables and 
 other officers of such detached parts are hereby required to obey the 
 warrants, orders, and acts of such justice or justices, and to perform 
 their several duties in respect thereof, under the pains and penalties to 
 which any constable or other officer may be liable for a neglect of duty.' 
 
 By sec. 3, ' The word " county " shall be taken to mean and include 
 county, riding, division, and parts of a county having a separate com- 
 mission of the peace.' (v) 
 
 It has been held that the grand jury of the county, which wholly 
 surrounds a detached part of another county, may find an indictment 
 for an offence committed in such detached part, and that the prisoner 
 may be tried by a jury of such surrounding county. The prisoner was 
 indicted in Dorsetshire for larceny in a parish of Somersetshire, en- 
 tirely detached from it, and surrounded by Dorsetshire. He had been 
 committed by a Dorsetshire magistrate to the gaol of that county. 
 The indictment laid the offence to have been committed in the parish 
 of Holwell, the same being a detached part of the county of Somerset, 
 surrounded in the whole by the county of Dorset; the venue in the 
 margin was Dorset. The indictment did not state that the prisoner was 
 in Dorsetshire, or that he was committed by a Dorsetshire magistrate. 
 Fitzherbert objected, first, that this should have appeared on the face 
 of the indictment ; and, secondly, that the grand jury of Dorsetshire 
 could not find the bill, as there were no words in the statute giving 
 any power to find the bill ; and he referred to the 60 Geo. 3, c. 4, 
 the 7 Geo. 4, c. 64, s. 12, and the 4& 5 Wm. 4,c. 36, to shew that the 
 word ' try ' in a statute did not include the finding of a bill by the 
 grand jury; but Rolfe, B., overruled the objection, saying that it 
 would strike the Act out of the statute-book, (w) 
 
 (u) R. v. Pierce, 6 Cox, C. C. 117. See (i>) Sec. 2 provides for payment of ex- 
 
 E. v. French, 8 Cox, G. C. 252, post, Book penses of prosecutions by the county to 
 
 IV., ch. 13, as to an assault committed in which the detached part belongs. 
 
 a journey by railway. ' (iv) R. v. Loader, ex relatione Mr. Fitz-
 
 8 General Provisions. [book i. 
 
 Outlying districts may be transferred from one county to another. — 
 
 By the 3 & 4 Vict. c. 88, s. 2, justices of any two or more neighbouring 
 counties in their sessions may from time to time agree that such 
 parts of their several counties as to them shall seem fit, shall, for the 
 purposes of the 2 & 3 Vict. c. 93, be considered as forming part of 
 any other of the said counties ; and ' whenever any such district shall 
 be so transferred, for the purposes of the said Act, from one county 
 to another, with the consent of the justices of both the last-mentioned 
 counties, such district shall be considered, for the purposes of the said 
 Act, as if it were detached from the county to which it belongs, and 
 wholly surrounded by the county to which it is so transferred, 
 and all the provisions contained herein, or in the said Act, or in 
 the 2 & 3 Vict. c. 82, shall be taken to apply to such transferred 
 districts.' 
 
 By the 21 & 22 Vict. c. 78, s. 2, the preceding provision ' shall 
 extend to any part of a county which did not form part of such 
 county before the passing of the 7 & 8 Vict. c. 61, in like manner as 
 if the same had always formed part of such county.' 
 
 Detached parts of counties to be part of the county by -which they 
 are surrounded. — By the 7 & 8 Vict. c. 61, s. 1, 'every part of any 
 county in England or Wales, which is detached from the main body 
 of such county, shall be considered, for all purposes, as forming part 
 of that county of which it is considered a part, for the purposes of 
 the election of members to serve in Parliament as knights of the 
 shire,' under the 2 & 3 Win. 4, c. 64 ; provided that nothing herein 
 contained shall alter the county, riding, or division to which any 
 such detached part shall be deemed to belong for the purpose of hold- 
 ing inquests under the 6 & 7 Vict. c. 12. (x) 
 
 In certain counties of cities and towns prisoners may be committed, 
 and tried at assizes held for adjoining county. — By the 14 & 15 Vict. 
 c. 55, s. 19, ' whenever any justice or justices of the peace, or coroner, 
 acting for any county of a city or county of a town corporate within 
 which Her Majesty has not been pleased for five years next before 
 the passing of this Act to direct a commission of Oyer and Terminer 
 and gaol delivery to be executed, and until Her Majesty shall be 
 pleased to direct a commission of Oyer and Terminer and gaol deliv- 
 ery to be executed within the same, shall commit for safe custody 
 to the gaol or house of correction of such county of a city or town 
 
 herbert. S. C. Talf. Dick. Q. S. 188, where were to all intents and purposes part of the 
 
 a quaere is added to the decision by the county for which such justice acts,' unless he 
 
 learned editor; but with all respect to his is tried on an indictment found by the grand 
 
 opinion, it should seem that the decision is jury of such county ; for that is the mode 
 
 perfectly correct, as the object of the Act in which he would be tried if the part were 
 
 clearly was to render prisoners triable in to all intents part of that county. C. S. G. 
 
 the surrounding county, and to prevent ex- (x) Sec. 2. The detached parts are to 
 
 pense, and the effect of a contrary decision belong to the adjoining hundred, &c, or to 
 
 would be that they never could be so tried form a separate hundred. Sec. 4. ' No ju- 
 
 in such county, except where an indictment dicial proceeding or deed or other instru- 
 
 had been found by a grand jury of the nient in writing shall be invalidated by 
 
 county to which the detached part belonged; reason of any error in stating the name of 
 
 which would greatly add both to the incon- the county to which such detached portion 
 
 venience and expense, which it was in- originally belonged, instead of the county to 
 
 tended to avoid. It is difficult also to see which it will belong under this Act, or the 
 
 how it can be correctly said that a person is converse.' 
 ' tried in like manner as if such detached part
 
 chap. I.] Offences on the Sea. 9 
 
 any person charged with any offence committed within the limits of 
 such county of a city or town not triable at the court of quarter ses- 
 sions of the said county of a city or county of a town, the commitment 
 shall specify that such person is committed pursuant to this Act, and 
 the recognizances to appear to prosecute and give evidence taken by 
 such justice, justices, or coroner shall in all such cases be conditioned 
 for appearance, prosecution, and giving evidence at the court of Oyer 
 and Terminer and gaol delivery for the next adjoining county ; (y) and 
 the justice, justices, or coroner by whom persons charged as aforesaid 
 may be committed, shall deliver or cause to be delivered to the proper 
 officer of the court the several examinations, informations, evidence, 
 recognizances, and inquisitions relative to such persons at the time 
 and in the manner that would be required in case such persons had 
 been committed to the gaol of such adjoining county by a justice or 
 justices, or coroner, having authority so to commit, and the same pro- 
 ceedings shall and may be had thereupon, at the sessions of Oyer and 
 Terminer or general gaol delivery for such adjoining county as in the 
 case of persons charged with offences of the like nature committed 
 within such county.' 
 
 The venue in the margin of an indictment was ' county of Norfolk, 
 being the next adjoining county to the borough of Yarmouth ; ' the 
 offence was committed in the parish of Gorlestone, in Suffolk. The 
 whole of that parish is within the jurisdiction of the borough of 
 Great Yarmouth, and the prisoner had been committed by the borough 
 magistrates to the house of correction at Great Yarmouth. It was 
 objected that the prisoner could not be tried in Norfolk. Pollock, C. 
 B. : ' The words of the statute are, that in such a case as this the 
 prisoner shall be tried " in the next adjoining county." Here the 
 next adjoining county was either Norfolk or Suffolk. The place in 
 the borough where the offence was committed has nothing to do with it. 
 This would very likely have been a good trial in Suffolk, but I think 
 that it is also a good trial in Norfolk.' (z) 
 
 Trial of Offences committed on the Sea. 
 
 Offences to be tried in the places limited by commission. — The 28 
 Hen. 8, c. 15, s. 1, enacts that all treasons, felonies, robberies, mur- 
 ders, and confederacies, committed in or upon the sea, or in any 
 haven, river, creek, or place, where the admiral has, or pretends to 
 have, power, authority, or jurisdiction, shall be inquired, tried, &c, in 
 such shires and places as shall be limited by the King's commis- 
 sion, as if any such offences had been committed upon the land, (a) 
 
 (y) Here follow some words repealed by adjoining counties, see 38 George III. c. 52, 
 
 the Statute Law Revision Act, 1875. As to s. 2. 
 
 the counties to which certain boroughs are to (z) R. v. Gallant, 1 F. & F. 51 7. 1 
 
 be deemed adjoining, see 45 & 46 Vict. c. 50, (a) The 28 Hen. 8, c. 15, s. 2, intro- 
 
 Scbed. 6. As to preferring indictments in duces 'manslaughters,' and uses tbe words 
 
 American Note. 
 
 1 It seems that in many States in Amer- goods, when the taking has been in another 
 ica it has been held that a man may be State. Bishop, i. s. 141. 
 tried in one State, where he has carried the
 
 10 General Provisions. [book i. 
 
 Concurrent jurisdiction of the common law and Admiralty. — In a 
 case at the Admiralty session of a murder committed in a part 
 of Milford Haven, where it was about three miles across, about 
 seven or eight miles from the mouth of the river, or open sea, and 
 about sixteen miles below any bridges over the river, a question was 
 made whether the place where the murder was committed was to 
 be considered as within the limits to which commissions granted 
 under the 28 Hen. 8, c. 15, by law extend. Upon reference to the 
 judges, they were unanimously of opinion that the trial was properly 
 had. And it is said that during the discussion of the point the con- 
 struction of this statute by Lord Hale (b) was much preferred to 
 the doctrine of Lord Coke ; (c) and that most, if not all, of the judges, 
 seemed to think that the common law has a concurrent jurisdiction 
 with the Admiralty in this haven, and in all other havens, creeks, and 
 rivers in this realm, (d ) It appeared to them that the 28 Hen. 8 
 applied to all great waters frequented by ships ; that in such waters 
 the admiral, in the time of Hen. 8, pretended jurisdiction ; that by 
 havens, &c, havens in England were meant to be included, though 
 they are all within the body of some county ; and that the mischief 
 from the witnesses being seafaring men was likely to apply to all 
 places frequented by ships, (c) 
 
 If a robbery be committed in creeks, harbours, ports, &c, in foreign 
 countries, the Court of Admiralty indisputably has jurisdiction of it, 
 and such offence is, consequently, piracy. (/) 
 
 High and low water-mark. 1 — It is clear that upon the open sea- 
 
 ' havens,' &c, without the qualification in 1752), it is said that the Lord Mayor of 
 
 the first section, where the admiral has ju- London used to summon a jury four times a 
 
 risdiction. One of the mischiefs recited in year ' to make inquisition after all offences 
 
 the first section is, that the witnesses being committed on the Thames and Medway up 
 
 commonly mariners and shipmen, depart the river as far as Staines Bridge, and down 
 
 without long tarrying or protraction of time, the river as far as the points of it next the 
 
 The statute is almost in terms with 27 Hen. sea,' and that ' the jurisdiction of the City 
 
 8, c. 4, except that it adds ' treasons ' to the of London in the river of Thames from 
 
 offences. See R. v. Snape, 2 East, P. C. Staines Bridge westward unto the points of 
 
 807 ; h". v. Bayley, R. & H. 1 ; R. v. Amar- the river next to the sea eastward, appear- 
 
 row, R. & R. 286. As to the admiral's eth to belong to the City.' All this appears 
 
 jurisdiction, see 2 Hale, 12. to be taken from old charters. In 1347 it 
 
 (b) 2 Hale, 16, 17. appears that persons setting kiddels ultra 
 
 (r) 3 Inst. 111. 4 Inst. 134. Genland (Yantlett) versus mare were fined. 
 
 (J) Brace's case, 2 Leach, 1093. Russ. P. 94, 95, 96. In later times Yendall or 
 
 & Ry. 243. This was a case of murder. Yenlet seems from old charters to be the 
 
 The stat. 15 Rich. 2, c. 3, gives the admiral limit. P. 139. All this seems to show that 
 
 jurisdiction to inquire of the death of a pountz means points, not bridges, 
 man, and of a mayhem done in great ships (c) MS. Bayley, J. 
 
 hovering in the main stream of great rivers, (/) R. v. Jemot, Old Bailey, 28th Feb. 
 
 beneath the bridges of the same rivers nigh 1812. MS. Jerv. Arch. 366, edit. 15. The 
 
 to the sea, and in none other places of the newspaper note (Times, Feb. 29, 1812), 
 
 same rivers ; which jurisdiction is only con- calls the offence larceny. It took place from 
 
 current with, and not in exclusion of, the a British ship in a natural harbour at Cuba, 
 
 common law. 1 East, P. C. 368. It is most and was tried at an Admiralty sessions at the 
 
 probable that pountz in the 15 Rich. 2, c. 3, Old Bailey. The prisoner was sentenced to 
 
 means points and not bridges. In ' A de- death. R. v. Carr, 10 Q. B. I). 76, at p. 83. 
 scription of the Biver Thames ' (Longman, 
 
 American Note. 
 
 1 Nations hold possession of the ocean It is suggested that the distance should, in 
 
 as far as a cannon ball will reach from the reason, be greater, since the great improve- 
 
 shore, which is estimated to be a marine ments in gunnery. Bishop, i. s. 104. 
 league, or about three and a half miles.
 
 chap. I.] Offences on the Sea. 11 
 
 shore the common law and the Admiralty have alternate jurisdic- 
 tion between high and low water-mark ; (g) but it is sometimes a 
 matter of difficulty to fix the line of demarcation between the county 
 and the high sea in harbours, or below the bridges in great rivers. 
 The question is often more a matter of fact than of law, and determi- 
 nable by local evidence ; but some general rules upon the point are col- 
 lected by Mr. East. He says that ' in general it is said that such 
 parts of the rivers, arms, or creeks, are deemed to be within the bodies 
 of counties where persons can see from one side to the other. Lord 
 Hale, in his treatise De jure maris, says that the arm or branch 
 of the sea which lies within the fauces terras, where a man may 
 reasonably discern between shore and shore, is, or at least may be, 
 within the body of a county. Hawkins, however, considers the line 
 more accurately confined, by other authorities, to such parts of the 
 sea where a man, standing on the one side of the land, may see what 
 is done on the other; and the reason assigned by Lord Coke in the 
 Admiralty case (h) in support of the county coroner's jurisdiction, 
 where a man is killed in such places, because that the county may well 
 know it, seems rather to support the more limited construction. But 
 at least, where there is any doubt, the jurisdiction of the common law 
 ought to be preferred.' (i) 
 
 A bay within headlands may be within the Admiralty jurisdiction. — 
 Where a murder was committed in Roundstone Bay, and it appeared 
 that the place in question was within the county of Galway, and that 
 the headlands bounding the bay were so situated that a man could see 
 from the one to the other, and that the place in question would fall 
 within a straight line drawn from the one headland to the other, and 
 that in that part of the bay there were fifteen fathoms water, and that 
 a ship of 120 tons could sail there ; but there was no evidence of its 
 having been frequented by shipping, or of any Admiralty process 
 having ever been executed within it ; it was held by the judges in 
 Ireland that the murderer was rightly tried under an Admiralty 
 commission, (j) 
 
 Penarth Roads case. — But upon an indictment for maliciously 
 wounding in the county of Glamorgan, it appeared that the prisoners 
 were Americans, and they and the person wounded were part of the 
 crew of the American ship ' Gleaner,' which sailed from the docks of 
 Cardiff to an anchorage in Penarth Roads, and the offence was commit- 
 ted shortly before she arrived at that anchorage, when the ship was 
 three quarters of a mile from land, in a place never left dry by the 
 tide ; but she was within a quarter of a mile of the land which is left 
 dry by the tide. The shore of the county of Glamorgan extends many 
 miles up and down the Bristol Channel from the place where the 
 offence was committed. The spot in question was in the Bristol Chan- 
 nel, between the Glamorganshire and Somersetshire coasts, and was 
 about ten miles from the opposite coast of Somersetshire. Two 
 islands, called the Flat and Steep Holmes, are outside the anchorage- 
 ground, and farther from the shore than it is, but not lower down the 
 
 (g) 3 Inst. 113. 2 Hale, 17 ; and see 2 (li) 13 Co. 52. 
 
 Hawk, c. 9, s. 14, as to the jurisdiction of (?) 2 East, P. C. c. 17, s. 10, p. 803, 
 
 the coroner in offences on the seashore. 804. 
 Anonymous, 1 Lewin, 242. (j) R. v. Mannion, 2 Cox, C. C. 158.
 
 12 General Provisions. [book i. 
 
 Channel, being abreast of the anchorage-ground. When the offence 
 was committed the ship was inside, and about two miles from, the 
 Flat Holmes, and four or five miles from the Steep Holmes, and was 
 within the Lavernock Point in Penarth Roads, but outside Penarth 
 Head. Penarth Head and Lavernock Point form a bay. At Penarth 
 Head persons can see from one to the other, and could see what a 
 vessel was doing from one to the other, but could not see the people 
 from one to the other. From where the ship was persons could see 
 people at Lavernock, and see what they were doing if they took par- 
 ticular notice of them, and they could see the coast of Somersetshire 
 on a clear day. The mouth of the Severn is at King's Road, higher 
 up the Channel. The Holmes are part of the parish of St. Mary's, 
 Cardiff, and taxes have been collected from the occupiers of Flat 
 Holmes for St. Mary's parish. By an order of the Commissioners of 
 Her Majesty's Treasury, the port of Cardiff has been fixed so as to 
 include the spot in question. It was objected that the prisoners could 
 not be tried in the county of Glamorgan, as there was no proof that 
 the offence was committed in that county ; but it was held that the 
 offence was committed in that county. Cockburn, C. J. : ' The ques- 
 tion is, whether the part of the sea on which the vessel was at the 
 time when the offence was committed forms part of the body of the 
 county of Glamorgan ; and we are of opinion that it does. The sea 
 in question is part of the Bristol Channel, both shores of which form 
 part of England and Wales, of the county of Somerset on one side, 
 and the county of Glamorgan on the other. We are of opinion that, 
 looking at the local situation of this sea, it must be taken to belong 
 to the counties respectively by the shores of which it is bounded ; 
 and the fact of the Holmes, between which and the shore of the 
 county of Glamorgan the place in question is situated, having always 
 been treated as part of the parish of Cardiff, and as part of the county 
 of Glamorgan, is a strong illustration of the principle on which we 
 proceed, namely, that the whole of this inland sea between the counties 
 of Somerset and Glamorgan is to be considered as within the counties, 
 by the shores of which its several parts are respectively bounded. 
 We are, therefore, of opinion that the place in question is within 
 the body of the county of Glamorgan.' (k) 
 
 Stealing at sea and bringing on shore. — Formerly the question, 
 whether the fact was committed on the sea or within the body 
 of a county, was of importance ; for if it turned out that the goods 
 were taken anywhere within the body of a county, the commissioners 
 under the statute of Hen. 8 had no jurisdiction to inquire of it ; and 
 if it appeared that the goods were taken at sea, and afterwards brought 
 on shore, the offender could not be indicted as for a larceny in that 
 county into which they were carried, because the original felony was 
 not a taking of which the common law takes cognizance. (I) And the 
 39 Geo. 3, c. 37, infra, relates only to offences committed on the high 
 seas, and out of the body of any county, (in) 
 
 (?.•) R. v. Cunningham, Bell, C. C. 72. sea of the same nature as if it had been 
 
 (/) 2 East, P. C. c. 17, s. 12, p. 805. committed on land, and triable by jury, it 
 
 3 Inst. 113. R. v. Prowes, 1 M. C. C. R. should seem that the ground of the former 
 
 349. R. v. Madge, 9 C. & P. 29. decisions fails and therefore they ought to 
 
 (m) But as this Act and the 24 & 25 be considered as no longer binding. 
 Vict. c. 96, s. 115, make a larceny on the
 
 chap, i.] Offences on the Sea. 13 
 
 Where a prisoner was indicted for stealing three chests of tea out of 
 the ' Aurora,' of London, on the high seas, and it was proved that the 
 larceny was committed while the vessel lay off Wampa, in a river, 
 twenty or thirty miles from the sea, but there was no evidence as to 
 the tide flowing, or otherwise, at the place where the vessel lay, it 
 was held, from the circumstance that the tea was stolen on board the 
 vessel, which had crossed the ocean, that there was sufficient evidence 
 that the larceny was committed on the high seas, (n) 
 
 The 39 Geo. 3, c. 37, s. 1, provides, ' that all and every offence and 
 offences, which, after the passing of this Act, shall be committed upon 
 the high seas out of the body of any county of this realm, shall be. 
 and they are hereby declared to be offences of the same nature respec- 
 tively, and to be subject to the same punishments respectively, as if 
 they had been committed upon the shore, and shall be inquired of, 
 heard, tried, and determined and adjudged in the same manner as 
 treasons, felonies, murders, and confederacies are directed to be by the 
 same Act' (28 Hen. 8, c. 15, ante, p. 9). 
 
 The 46 Geo. 3, c. 54, enacts, that all treasons, piracies, felonies, 
 robberies, murders, conspiracies, and other offences of what nature 
 or kind soever, committed upon the sea, or in any haven, river, creek, 
 or place, where the admiral or admirals have power, authority, or 
 jurisdiction, may be inquired of, tried, &c, according to the common 
 course of the laws of this realm used for offences committed upon the 
 land within this realm, and not otherwise, in any of His Majesty's 
 islands, plantations, colonies, dominions, forts, or factories, under and 
 by virtue of the King's commission or commissions, under the Great 
 Seal of Great Britain, to be directed to any such four or more discreet 
 persons as the Lord Chancellor of Great Britain, Lord Keeper, or Com- 
 missioner for the custody of the Great Seal of Great Britain for the 
 time being, shall from time to time think fit to appoint ; and that the 
 said commissioners so to be appointed, or any three of them, shall 
 have such and the like powers and authorities for the trial of all such 
 murders, &c, within any such island, &c, as any commissioners 
 appointed according to the directions of the 28 Hen. 8, by any law 
 or laws then in force would have for the trial of the said offences 
 within this realm. And it further enacts, that all persons convicted 
 of any of the said offences so to be tried, &c, shall be liable to the 
 same pains, &c, as, by any laws then in force, persons convicted of 
 the same would be liable to, in case the same were tried, &c, within 
 this realm, by virtue of any commission according to the directions 
 of the 28 Hen. 8. (o) 
 
 By the Territorial Waters Jurisdiction Act, 1878 (41 & 42 Vict. c. 73), 
 s. 2, ' An offence committed by a person, whether he is or is not a sub- 
 ject of Her Majesty on the open sea within the territorial waters of 
 Her Majesty's dominions, is an offence within the jurisdiction of the 
 Admiral, although it may have been committed on board or by means 
 of a foreign ship, and the person who committed such offence may be 
 arrested, tried, and punished accordingly.' 
 
 By sec. 3, ' Proceedings for the trial & punishment of a person who 
 
 (n) R. v. Allen, R. & M. C. 0. R. 494 ; (o) See 12 & 13 Vict. c. 96, post. 
 
 S. C, 7 C. & P. 664.
 
 14 General Provisions. [book i. 
 
 is not a subject of Her Majesty and who is charged with any such 
 offence as is declared by this Act to be within the jurisdiction of the 
 Admiral, shall not be instituted in any court of the United Kingdom, 
 except with the consent of one of Her Majesty's principal Secretaries 
 of State, and on his certificate that the institution of such proceedings 
 is in his opinion expedient, and shall not be instituted in any of the 
 dominions of Her Majesty out of the United Kingdom, except with 
 the leave of the governor of the part of the dominions in which such 
 proceedings are proposed to be instituted, and on his certificate that it 
 is expedient that such proceedings should be instituted.' 
 
 By sec. 4, ' On the trial of any person who is not a subject of Her 
 Majesty for an offence declared by this Act to be within the jurisdic- 
 tion of the Admiral, it shall not be necessary to aver in any indict- 
 ment or information on such trial that such consent or certificate of 
 the Secretary of State or Governor, as is required by this Act, has 
 been given ; and the fact of the same having been given shall be pre- 
 sumed, unless disputed by the defendant at the trial ; and the produc- 
 tion of a document purporting to be signed by one of Her Majesty's 
 principal Secretaries of State as respects the United Kingdom, and by 
 the Governor as respects any other part of Her Majesty's dominions, 
 and witnessing such consent and certificate, shall be sufficient evidence, 
 for all the purposes of this Act, of the consent and certificate required 
 by this Act. 
 
 ' Proceedings before a justice of the peace or other magistrate, pre- 
 vious to the committal of an offender for trial, or to the determination 
 of the justice or magistrate that the offender is to be put upon his 
 trial, shall not be deemed proceedings for the trial of the offence com- 
 mitted by such offender, for the purposes of the said consent and cer- 
 tificate under this Act.' 
 
 By sec. 5, ' Nothing in this Act contained shall be construed to be 
 in derogation of any rightful jurisdiction of Her Majesty, her heirs or 
 successors, under the law of nations, or to affect or prejudice any 
 jurisdiction conferred by Act of Parliament or now by law existing in 
 relation to foreign ships, or in relation to persons on board such ships.' 
 
 By sec. 6, ' This Act shall not prejudice or affect the trial in man- 
 ner heretofore in use of any act of piracy as defined by the law 
 of nations, or affect or prejudice any law relating thereto; and where 
 any act of piracy as defined by the law of nations is also any such 
 offence as is declared by thi,s Act to be within the jurisdiction of the 
 Admiral, such offence may be tried in pursuance of this Act, or in pur- 
 suance of any other Act of Parliament, law, or custom relating thereto.' 
 
 By sec. 7, ' The jurisdiction of the Admiral ' is defined as including 
 ' the jurisdiction of the Admiralty of England and Ireland, or either 
 of such jurisdictions as used in any Act of Parliament ; and for the 
 purpose of arresting any person charged with an offence declared by 
 this Act to be within the jurisdiction of the Admiral, the territorial 
 waters adjacent to the United Kingdom or any other part of Her Ma- 
 jesty's dominions shall be deemed to be within the jurisdiction of any 
 judge, magistrate, or officer having power within such United Kingdom 
 or other part of Her Majesty's dominions to issue warrants for arrest- 
 ing or to arrest persons charged with offences committed within the 
 jurisdiction of such judge, magistrate, or officer.'
 
 chap. I.] Offences on the Sea. 15 
 
 ' The territorial waters of Her Majesty's dominions ' is defined as 
 meaning in reference to the sea ' such part of the sea adjacent to the 
 coast of the United Kingdom or the coast of some other part of Her 
 Majesty's dominions as is deemed by international law to be within 
 the territorial sovereignty of Her Majesty ; and for the purpose of 
 any offence declared by this Act to be within the jurisdiction of the 
 Admiral, any part of the open sea within one marine league of the 
 coast measured from low water-mark, shall be deemed to be open 
 sea within the territorial waters of Her Majesty's dominions.' 
 
 ' Offence ' is defined as ' an act, neglect, or default of such a 
 description as would, if committed within the body of a county in 
 England, be punishable on indictment according to the law of Eng- 
 land for the time being in force.' 
 
 ' Ship ' includes every description of boat or other floating craft, 
 and ' foreign ship ' means every ship which is not a, British 
 ship, (r) 
 
 By 7 & 8 Geo. 4, c. 28, s. 12, 'All offences prosecuted in the High 
 Court of Admiralty of England shall upon every first and subsecpient 
 conviction be subject to the same punishments, whether of death or 
 otherwise, as if such offences had been committed upon the land.' 
 
 Each of the Consolidation Acts 24 & 25 Vict, c, 96, s. 115 ; c. 97, s. 
 72 ; c. 98, s. 50 ; c. 99, s. 36 ; and c 100, s. 68, contains the follow- 
 ing clause : — 
 
 ' All indictable offences mentioned in this Act which shall be com- 
 mitted within the jurisdiction of the Admiralty of England or Ireland 
 shall be deemed to be offences of the same nature and liable to the 
 same punishments as if they had been committed upon the land in 
 England or Ireland, and may be dealt with, inquired of, tried, and 
 determined in any county or place in England or Ireland in which the 
 offender shall be apprehended or be in custody, in the same manner in 
 all respects as if they had been actually committed in that county or 
 place ; and in any indictment for any such offence, or for being an 
 accessory to such an offence, the venue in the margin shall be the 
 same as if the offence had been committed in such county or place, 
 and the offence shall be averred to have been committed " on the high 
 seas : " Provided that nothing herein contained shall alter or affect any 
 of the laws relating to the government of Her Majesty's land or naval 
 forces.' 
 
 These enactments were framed on the similar clauses contained in 
 the 7 & 8 Geo. 4,c. 29, s. 77; 7 & 8 Geo. 4, c. 30, s. 43 ; 9 Geo. 4, c. 31, 
 s. 32 ; 9 Geo. 4, c. 55, s. 74 (I.) ; 9 Geo. 4, c. 56, s. 55 (I.) ; and 10 Geo. 
 4, c. 34, s. 41 (I.) ; together with the 7 & 8 Vict, c. 2. Some of these 
 enactments simply provide for the trial of offences committed within 
 the jurisdiction of the Admiralty ; whilst others provide, in addition, 
 that the offences mentioned in the Act, which shall be committed 
 
 (?•) This Act was passed in consequence in English law would amount to man- 
 
 of the decision in R. v. Keyn (The Fran- slaughter. He was tried at the Central 
 
 conia), 2 Ex. D. 63. In that case the pris- Criminal Court, but on appeal it was held 
 
 oner, who was a foreigner and in command by the whole court that there was no power 
 
 of a foreign ship, whilst passing within to try offences committed by foreigners on 
 
 three miles of the English shore, ran down board foreign ships while within the three 
 
 and sunk a British ship and drowned one of miles limit, 
 her passengers, under circumstances which
 
 16 General Provisions. [book i. 
 
 within the jurisdiction of the Admiralty, shall be deemed to be offences 
 of the same nature, and liable to the same punishments, as if they had 
 been committed upon the land in England or Ireland. It seems clear 
 that, wherever an Act creates new offences, this is the proper enact- 
 ment ; for, though in the case of offences against the laws of nature 
 and nations, such as murder or piracy committed on the seas, the 
 general course of legislation has been simply to provide for their trial, 
 and no doubt correctly, because, in the eye of the law of England 
 they were offences of the same nature as if they had been committed 
 on land in England, yet it may well be doubted whether that be suffi- 
 cient in the case of newly created offences ; and it is certainly much 
 safer to have the provision with which this clause commences. The 
 39 Geo. 3, c. 37, s. 1, no doubt provides generally, that every 
 offence committed upon the high seas shall be of the same nature, 
 &c, as if it had been committed on shore, but it is by no means clear 
 that that enactment applies to any offence created by a subsequent 
 statute, and it was much better not to leave the matter open to 
 any such question. 
 
 Under these clauses the Court of Quarter Sessions has authority 
 to try any offender apprehended or in custody within their local 
 jurisdiction for any offence committed on the sea, which they might 
 have tried if it had been committed within that jurisdiction. A 
 prisoner committed a larceny on board the British vessel Candia 
 whilst on the high seas, and was apprehended within the borough 
 and county of Southampton, and it was held that the Court of 
 Quarter Sessions for that borough and county had authority to try 
 him for that offence, (s) 
 
 A prisoner was charged at the Liverpool Assizes with the wilful 
 murder of the captain of the hulk Kent in the Bonny Eiver, Africa. 
 It was proved that the Kent had been a sailing ship, and was regis- 
 tered as a British ship though not British built. She had been for 
 eighteen months dismasted and used as a floating depot in the Bonny 
 Eiver for a line of steamers trading from Liverpool. She floated in 
 the tideway of the river and hoisted the British ensign at the peak. 
 The prisoner was proved to have seized the captain and thrown him 
 overboard, and he was not seen again. Archibald, J., held that there 
 was sufficient evidence that the Kent was a British ship to give the 
 court jurisdiction, and that it was not necessary that the crime should 
 be wholly completed on board such ship, (t) 
 
 As to the trial of a murder or manslaughter where the act causing 
 death took place out of England or Ireland, &c, see 24 & 25 Vict, 
 c. 100, ss. 9 and 10, noticed post, Murder. 
 
 As to the trial of an accessory to a felony committed within the 
 jurisdiction of the Admiralty of England or Ireland, see 24 & 25 Vict. 
 c. 94, s. 9. 
 
 The Central Criminal Court Act, 4 & 5 Will. 4, c. 36, s. 22, enacts, 
 that ' it shall and may be lawful for the justices and judges of oyer 
 and terminer, and gaol delivery to be named in, and appointed by the 
 commissions to be issued under the authority of this Act, or any two 
 
 (s) R. v. Peel, 1 L. & C. 231 ; 32 L. J. (/) R. v. Armstrong, 13 Cox, C. C. 184. 
 
 M. C. 65. See this case, post.
 
 chap, i.] Offences on the Sea. 17 
 
 or more of them, to inquire of, hear and determine any offence or 
 offences committed, or alleged to have been committed on the high 
 seas, and other places within the jurisdiction of the Admiralty of 
 England, and to deliver the gaol of Newgate of any person or per- 
 sons committed to, or detained therein for any offence or offences 
 alleged to have been done and committed upon the high seas afore- 
 said, within the jurisdiction of the Admiralty of England ; and all 
 indictments foimd, and trials, and other proceedings had or taken 
 by and before the said justices and judges of oyer and terminer and 
 gaol delivery shall be valid and effectual to all intents and purposes 
 whatsoever.' 
 
 An accessory before the fact to a felony committed on the high 
 seas within the jurisdiction of the Admiralty, might be indicted and 
 tried at the Central Criminal Court by virtue of the preceding sec- 
 tion and the 7 Geo. 4, c. 64, s. 9 (now repealed), although the princi- 
 pal had not been ' committed to, or detained in,' the gaol of Newgate 
 for his offence, (u) 
 
 The 7 & 8 Vict. c. 2, s. 1, reciting the 28 Hen. 8, c. 15, and that it 
 is expedient that provision be made for the trial of persons charged 
 with offences committed within the jurisdiction of the Admiralty, 
 enacts ' that Her Majesty's justices of assize or others Her Majesty's 
 commissioners by whom any Court shall be holden under any of Her 
 Majesty's commissions of oyer and terminer or general gaol delivery 
 shall have severally and jointly all the powers which by any Act are 
 given to the commissioners named in any commission of oyer and ter- 
 miner for the trying of offences committed within the jurisdiction of 
 the Admiralty of England, and that it shall be lawful for the first- 
 mentioned justices and commissioners, or any one or more of them, to 
 inquire of, hear, and determine all offences alleged to have been com- 
 mitted on the high seas and other places within the jurisdiction of the 
 Admiralty of England, and to deliver the gaol in every county and 
 franchise within the limits of their several commissions of any person 
 committed to or imprisoned therein for any offence alleged to have been 
 committed upon the high seas and other places within the jurisdiction 
 of the Admiralty of England ; and all indictments found, and trials 
 and other proceedings had, by and before the said justices and com- 
 missioners shall be valid.' 
 
 Sec. 2, 'in all indictments preferred before the said justices and com- 
 missioners under this Act the venue laid in the margin shall be the 
 same as if the offence had been committed in the county where the 
 trial is had ; and all material facts which in other indictments would 
 be averred to have taken place in the county where the trial is had 
 shall in indictments prepared (v) and tried under this Act be averred 
 to have taken place " on the high seas." ' (w) 
 
 (u) R. v. Wallace, 2 M. C. C. R. 200. by the 11 & 12 Vict. c. 42, s. 34, and 12 & 
 
 C. & M. 200. 13 Vict. c. 69, s. 31, which was repealed by 
 
 (v) Qucere, preferred. the 14 & 15 Vict. c. 93, s. 43, and the exani- 
 
 (w) Sec. 3 provided for the commitment ination and commitment of such persons are 
 
 of persons charged with offences committed now regulated by the 11 & 12 Vict. c. 42, and 
 
 within the jurisdiction of the Admiralty 14 & i5 Vict. c. 93. It seems, therefore, 
 
 under the 7 Geo. 4, c. 38, but so much of that sec. 3 of the 7 & 8 Vict. c. 2, is vir- 
 
 that Act as related to the examination and tually repealed. Sec. 4 of the 7 & 8 Vict, 
 
 commitment of such persons was repealed c. 2, provides that the Act shall not affect 
 
 VOL. I. — 2
 
 18 General Provisions. [book i. 
 
 Where a larceny was alleged under this Act to have been committed 
 ' on the high seas,' it was held that the indictment was sufficient, 
 without adding ' within the jurisdiction of the Admiralty.' (x) 
 
 An indictment tried at the assizes under this statute for murder com- 
 mitted on the high seas, need not conclude contra formam statuti. (y) 
 
 By the Merchant Shipping Act, 17 & 18 Vict. c. 104, s. 267, ' All 
 offences against property or person committed in or at any place 
 either ashore or afloat out of Her Majesty's dominions by any master, 
 seaman, or apprentice who, at the time when the offence is committed, 
 is or within three months previously has been employed in any British 
 ship (z) shall be deemed to be offences of the same nature respec- 
 tively, and be liable to the same punishments respectively, and be 
 inquired of, heard, tried, determined, and adjudged in the same man- 
 ner and by the same Courts and in the same places as if such offences 
 had been committed within the jurisdiction of the Admiralty of Eng- 
 land ; ' ' and the costs and expenses of the prosecution of any such 
 offence may be directed to be paid as in the case of costs and expenses 
 of prosecutions for offences committed within the jurisdiction of the 
 Admiralty of England.' By sec. 518, the court before which any mis- 
 demeanor under that Act ' is tried, may in England make the same 
 allowances and order payment of the same costs and expenses as if 
 such misdemeanor had been enumerated in the 7 Geo. 4, c. 64, or any 
 other Act that may be passed for the like purpose; and may in any 
 other part of Her Majesty's dominions make such allowances and 
 order payment of such costs and expenses (if any) as are payable or 
 allowable upon the trial of any misdemeanor under any existing Act 
 or ordinance, or as may be payable or allowable under any Act or law 
 for the time being in force therein.' (a) 
 
 To a count for murder since this statute, which alleged the murder 
 to have been committed ' upon the high seas,' it was objected that it 
 ought to have averred that the prisoners were on board a British ship, 
 or that they were British subjects ; and to counts alleging that the 
 prisoner was master of a British ship afloat in the river Elbe, and 
 that he there committed the murder, it was objected that these counts 
 did not allege the murder to have been committed ' on the high seas.' 
 But Wightman, J., thought the provision in the 7 & 8 Vict. c. 2, as to 
 the high seas, only directory, and overruled the objections, and, as they 
 were on the record, refused to reserve them, (b) 
 
 By the 18 & 19 Vict. c. 91, s. 21, 'if any person, being a British sub- 
 ject, charged with having committed any crime or offence on board any 
 
 the jurisdiction of the Central Criminal or assume the British national character, but 
 Court, or commissions under the 28 Hen. 8, so far as regards the payment of dues, the 
 c. 15. liability to pains and penalties, and the pun- 
 ts;) R. v. Jones, 1 Den. C. C. 101. ishment of offences committed on board such 
 (y) R. v. Serva, 2 C. & K. 53. See ship or by any person belonging to her, such 
 14 & 15 Vict. c. 100, s. 24, post, 36. ship shall be dealt with in the same manner 
 (2) By sec. 106, ' Whenever it is de- in all respects as if she were a recognised 
 clared by this Act that a ship belonging to British ship.' 
 
 any person or body corporate, qualified (a) Hunting seals in Behring Sea with- 
 
 according to this Act to be owners of Brit- in a period prohibited by an Order in Coun- 
 
 ish ships shall not be recognised as a British cil is a misdemeanor within this section, 
 
 ship, such ship shall not be entitled to any See 54 Vict. c. 19, re-enacted by 56 & 57 
 
 benefits, privileges, advantages, or protec- Vict. c. 23. 
 
 tion usually enjoyed by British ships and (b) R. v. Menham, 1 F. & F. 369. 
 shall not be entitled to use the British flag
 
 cllap. I.] Offences on the Sea. 19 
 
 British ship on the high seas or in any foreign port or harbour, or if 
 any person, not being a British subject, charged with having com- 
 mitted any crime or offence on board any British ship on the high 
 seas, is found within the jurisdiction of any court of justice in Her 
 Majesty's dominions which would have had cognizance of such crime 
 or offence if committed within the limits of its ordinary jurisdiction, 
 such court shall have jurisdiction to hear and try the case as if such 
 crime or offence had been committed within such limits.' 
 
 By 30 & 31 Vict. c. 124 (the Merchant Shipping Act, 1867), s. 11, 
 if any British subject commits any crime or offence on board any 
 British ship or on board any foreign ship to which he does not belong, 
 any court of justice in Her Majesty's dominions which would have had 
 cognizance of such crime or offence if committed on board a British 
 ship within the limits of the ordinary jurisdiction of such court shall 
 have jurisdiction to hear and determine the case as if the said crime 
 or offence had been committed as last aforesaid. 
 
 A ship, public or private, on the high seas, is considered a part of 
 the territory to which the ship belongs, and a foreigner committing an 
 offence in it is amenable to the laws of such territory. Upon an 
 indictment for wounding G. Smith, with intent to do him some griev- 
 ous bodily harm, it was proved that the prisoner Lopez, a foreigner, 
 being a sailor and one of the crew of the British ship Ontario, malici- 
 ously and unlawfully wounded Smith, also a foreigner and a sailor and 
 one of the crew of the same ship, whilst on the high seas and in the 
 same ship, on a voyage from London to the coast of East Africa. 
 Lopez was tried and convicted at the Assizes at Exeter ; and a case 
 was reserved upon the question whether he was properly convicted of 
 the offence committed on the high seas, (c) In another case, (d) upon 
 an indictment for murder, tried at the Central Criminal Court, it 
 appeared that the prisoner was a foreigner named Sattler and had 
 committed a larceny in England, and then went with part of the stolen 
 property to Hamburg. The owner of the property gave information to 
 the London police, and the deceased, who was a detective officer of that 
 force, and an English subject, went, and, with the assistance of the 
 police of Hamburg, arrested Sattler there, and brought him against 
 his will on board an English steamer trading between Hamburg and 
 London, in order that he might be tried for the larceny. Hamburg 
 is on the river Elbe, sixty miles from the sea ; but the tide flows 
 higher up than the place where the steamer was when Sattler was 
 taken on board. The steamer left Hamburg on the 21st of Novem- 
 ber, Sattler being in irons, and on the 22nd, whilst on the high 
 seas, he shot the deceased, who died of the wound. If the killing 
 had been by an Englishman, in an English county, it would have 
 been murder. The deceased had no warrant ; and a case was reserved 
 upon the question whether there was any jurisdiction to try Sattler 
 at the Central Criminal Court. It was contended in both cases that 
 there was no jurisdiction to try the prisoner under sec. 21 of the 18 
 & 19 Vict. c. 91 : — Lopez was not ' found ' within the jurisdiction of 
 the Court at Exeter, but was brought into the jurisdiction in custody 
 and against his will, having been ' found ' in the ship, (e) The clause 
 
 (c) R. v. Lopez, D. & B. 525 ; 27 L. J. (e) The case did not state how Lopez 
 M. C. 48. came into custody ; but this was the asser- 
 
 (d) K. v. Sattler, ibid. tion in the argument.
 
 20 General Provisions. [book i. 
 
 was intended to apply to cases where an offender, having escaped, 
 was discovered afterwards within another jurisdiction. In Battler's 
 case, the original caption at Hamburg was unlawful, and he was 
 illegally taken on board the steamer. There was no extradition 
 treaty between Hamburg and this country, and the arrest at Ham- 
 burg was without any warrant or authority ; and therefore it could 
 not be said that he was ' found ' within the jurisdiction of the Central 
 Criminal Court. Secondly, in neither case had the prisoner committed 
 any offence for which he was amenable to the English law. In none 
 of the statutes, except the 18 & 19 Vict. c. 91, s. 21, were foreigners 
 mentioned, and they were not to be included in them by implication. 
 It was admitted that Lopez went on board the vessel voluntarily ; 
 but Sattler, as a foreigner, owed no allegiance to our laws ; and as he 
 did not enter into our jurisdiction voluntarily, no allegiance was 
 created thereby. No allegiance could be created by bringing a 
 foreigner forcibly and illegally from his own land. For the Crown 
 it was contended : — First, that the word ' found ' meant that a man 
 might be tried at any place where he was at the time of the trial. 
 Secondly, that it was a general principle that a ship, public or private, 
 on the high seas, was, for the purpose of jurisdiction over crimes 
 therein committed, a part of the territory of the country to which 
 the ship belongs ; and a person coming voluntarily or involuntarily 
 on board an English ship was as much amenable to the criminal law 
 of England as if he came voluntarily or involuntarily into an English 
 county. Lord Campbell, C. J. : ' We are all of opinion that in both 
 these cases the conviction must be sustained. In the case of Lopez, 
 we have no doubt that the offence committed by the prisoner was, 
 under the circumstances, an offence against the laws of England. 
 The prisoner, a foreigner, was in an English ship ; he was under the 
 protection of English laws, and he therefore owed obedience to the 
 English laws, and was guilty of an offence against those laws when 
 he maliciously wounded another foreigner, one of the crew of the 
 same ship, on the high seas. It is unnecessary to enter into a discus- 
 sion of the authorities cited to prove that proposition, — -they are 
 quite overwhelming ; and I am glad to find that in this respect the 
 law of America and France is the same as our own. Then the only 
 other question is, whether there was jurisdiction under the commis- 
 sion of oyer and . terminer to try the prisoner at Exeter for that 
 offence ; and upon that point we entertain as little doubt. The Court 
 at Exeter would not have had jurisdiction before the 18 & 19 Vict, 
 c. 91, s. 21 ; but that statute is quite conclusive on the subject, and 
 seems to have been passed for the purpose of removing any doubt 
 that might arise. It provides that offences committed by foreigners 
 in British vessels on the high seas may be tried by any Court within 
 the jurisdiction of which the offender is found, if the offence is one 
 which would have been cognizable by such Court, supposing it to 
 have been committed within the limits of its ordinary jurisdiction. 
 Here the offence, if committed within the county of Devon, would 
 certainly have been triable at Exeter ; and as the prisoner was found 
 within that jurisdiction, it is the same as if the offence had been 
 committed within the limits of that jurisdiction ; and we therefore
 
 chap. I.] Offences on the Sea. 21 
 
 think there was clearly jurisdiction in the Court at Exeter to try 
 him there, and that he was legally convicted. With regard to the 
 case of Sattler, we think it equally clear that, although the prisoner 
 was a foreigner, the offence of which he was convicted was an offence 
 against the laws of England. [Lord Campbell here stated the facts.] 
 Then, here a crime is committed by the prisoner on board an English 
 ship on the high seas, which would have been murder if the killing 
 had been by an Englishman in an English county ; and we are of 
 opinion that, under these circumstances, whether the capture at 
 Hamburg and the subsequent detention were lawful or unlawful, 
 the prisoner was guilty of murder and an offence against the laws 
 of England ; for he was in an English ship, — part of the territory 
 of England, — entitled to the protection of the English law, and he 
 owed obedience to that law ; and he committed the crime of murder, 
 — that is to say, he shot the detective officer, not for the purpose of 
 obtaining his liberation, but for revenge, and of malice prepense. 
 Then comes the question, whether the Central Criminal Court had 
 jurisdiction to try the prisoner for this offence ; and it appears to us 
 that the late Act was framed for the purpose of obviating, and does 
 obviate, all doubt upon such a subject. A man is " found " wherever 
 he is actually present, and the prisoner was " found " within the 
 jurisdiction of the Central Criminal Court, and we are all of opinion 
 that the Court had jurisdiction to try him. It was contended that 
 the prisoner was not " found " within the j arisdiction, because he was 
 brought within it against his will ; but, upon the construction of the 
 statute, we are all of a different opinion.' (/) 
 
 (/) R. v. Lopez and R. v. Sattler, supra, the course of the civil law. To this pro- 
 
 These cases were argued separately, but only ceeding there was the vital objection that it 
 
 one judgment delivered. All that these did not try by a jury, and either the accused 
 
 cases really decide is that the prisoners were must plainly confess his offence, or there 
 
 properly tried under the IS & 19 Vict. c. 91, must be two witnesses who saw the offence 
 
 s. 21, and it was quite unnecessary to decide committed ; and this led to the passing of 
 
 whether they could have been tried under the 28 Hen. S, c. 15, as is plain from the 
 
 any other Act, and it is to be regretted that preamble and 3 Inst. 112. Xow, that Act 
 
 Lord Campbell should have said that they in terms makes 'all treasons, felonies, rob- 
 
 could not, as that dictum is clearly erro- beries, murders, and confederacies' com- 
 
 neous ; and as the 18 & 19 Vict. c. 91, and mitted upon the sea, or in any haven, river, 
 
 17 & 18 Vict. c. 101, apply only to mer- creek or place where the admiral has juris- 
 
 chant vessels, it is right to correct that diction, triable by commissions issued under 
 
 error. In the argument in R. v. Lopez, that Act, and as that Act did not create or 
 
 Cockburn, C. J., said, 'There is a strong alter any offence, but left the offences as they 
 
 opinion that but for the difficulty as to lay- were before it passed, 3 Inst. 112, it is clear 
 
 ing the venue, a person committing an that all the offences mentioned in it were 
 
 offence on the high seas in an English ship offences triable by the Court ot Admiralty, 
 
 would have been amenable to punishment and were by that Act made triable by a jury 
 
 at the common law.' And that opinion is under the commissions issued under it. 
 
 clearly right. The distinction is this : Then the 7 & 8 Vict. c. 2, s. 1, gave courts 
 
 wherever a murder or other felony against of oyer and terminer or general gaol deliv- 
 
 the law of nature or nations was committed ery all the powers which were given by any 
 
 in England or on the. narrow seas, it was Act to commissioners in any commission of 
 
 triable by jury in the Court of King's Bench oyer and terminer for trying offences com- 
 
 and courts of oyer and terminer and gaol mitted within the jurisdiction of the Admi- 
 
 delivery. But wherever a murder or such ralty. So that it is clear that the courts of 
 
 other felony was committed on the high oyer and terminer and gaol deliver}' have 
 
 seas, it could not be tried by a jury (because now the same jurisdiction as commissioners 
 
 a jury by the common law could only take under the 28 Hen. 8, c. 15, or as the Court 
 
 cognizance of felonies committed within the of Admiralty before that Act passed. In 
 
 local jurisdiction from which they were other words, such murders and other felo- 
 
 summoned), but such matters and other nies are now triable by the courts of oyer 
 
 felonies were always triable by the Court of and terminer and gaol delivery. C S. G. 
 Admiralty, which proceeded according to
 
 22 General Provisions. [book i. 
 
 To prove that a ship is a British ship, it is not necessary to pro- 
 duce the register or a copy thereof; it is sufficient to show orally 
 that she belongs to British owners, and carries the British flag, (g) 
 
 The prisoner was convicted of manslaughter committed on board 
 the Gustav Adolph on the high seas, at a point about five days' sail 
 from Pernambuco, and about 200 miles from the nearest land ; the 
 ship was built at Kiel, in the duchy of Holstein, and sailed thence 
 to London, and thence on the voyage in which the offence was 
 committed. All the officers and crew were foreigners ; the prisoner 
 was the second mate, and the deceased the master. The ship was 
 sailing under the English flag when the offence was committed. 
 The crew were told before sailing that Mr. Eehder was sole owner. 
 He was not born an Englishman. A certified copy of the register 
 of the Gustav Adolph under the 17 & 18 Vict. c. 104 was put in, and 
 admitted as prima facie evidence that the ship was a British ship. 
 Certain letters were put in, which, it was urged, showed a partnership 
 between Eehder and Ehlers, and it was urged that under the 17 & 18 
 Vict. c. 104, ss. 18, 38, and 103, the owner of a beneficial interest in 
 a British ship must be qualified in the same way as the owner of a 
 legal interest ; that, even admitting that the registration of the ship 
 in the name of Eehder was prima facie evidence that he was owner, 
 it could be no evidence of Ehler's qualification, and therefore the 
 letters proving Ehler's interest in the ship rebutted the prima facie 
 evidence that she was a British ship. On a case reserved, it was 
 held that there was prima facie evidence that she was a British 
 ship ; as there was evidence of a certificate of registry in London, 
 wherein Eehder was described as the owner at that time resident 
 in London, and the ship was sailing under the British flag; but that 
 the prima facie proof was rebutted by the proof that Eehder was 
 alien born ; and that there was no presumption that letters of deni- 
 zation or naturalisation had been granted to him, by reason that he, 
 being alien born, would have become liable to penalties under the 
 Act for registering the ship as belonging to a British owner, {h) 
 
 The ' high seas ' include any river where ' great ships go, where the 
 tide ebbs and flows.' (i) 
 
 The prisoner, the master of an English ship, entered into a con- 
 tract with the Chilian Government, whereby he agreed to convey to 
 the port of Liverpool five persons who had been ordered by that 
 Government to be transported. These persons were brought by force 
 on board the ship, guarded by soldiers of that State, and conveyed 
 by the prisoner, under the contract, and against their will, to Liver- 
 pool. At the time the prisoner received these persons on board, the 
 ship was lying in the territorial waters of Chili. The prisoner 
 having been convicted on these facts upon an indictment for false 
 imprisonment and assault tried at Liverpool, it was held that the 
 conviction could not be sustained for what was done within the 
 Chilian waters. It must be assumed that in Chili the act of 
 the Government towards its subjects was lawful ; and, although an 
 
 (r/) R. v. Allen, 10 Cox, C. C. 405 ; R. (i) R. v. Allen, 1 Moo. C. C. 494 ; R. v. 
 
 v. Seberg, 11 Cox, C. C. 520, 39 L. J. M. Anderson, L. R. 1 C. C. R. 161 ; 38 L. J. 
 C. 133 ; L. R. 1 C. C. R. 264. M. C. 12 ; R. v. Carr, 10 Q. B. D. 76. 
 
 (h) R. v. Bjornsen, L. & C. 545; 34 
 L. J. M. C. 180.
 
 chap. I.] Offences on the Sea. 23 
 
 English ship, in some respects, carries with her the laws of her 
 country in the territorial waters of a foreign State, yet, in other 
 respects, she is subject to the laws of that State, as to acts done to 
 the subjects thereof. The Government could justify all that it did 
 within its own territory, and it followed that the prisoner could 
 justify all that he did there as agent for the Government, and under 
 its authority. (/) But the conviction was sustained for that which 
 was done out of the Chilian territory. It is clear that an English 
 ship on the high sea, out of any foreign territory, is subject to the 
 laws of England ; and persons, whether foreign or English, on board 
 such ship, are as much amenable to English law as they would be 
 on English soil. Such being the law, if the act of the prisoner 
 amounted to a false imprisonment he was liable to be convicted. 
 Now, as the contract of the prisoner was to receive the five persons 
 on board the ship and to take them, without their consent, over the 
 sea to England, although he was justified in first receiving them in 
 Chili, yet that justification ceased when he passed the line of Chilian 
 jurisdiction, and after that it was a wrong which was intentionally 
 planned and executed in pursuance of the contract, amounting in 
 law to false imprisonment. It may be that transportation to England 
 is lawful by the law of Chili, and that a Chilian ship might so law- 
 fully transport Chilian subjects ; but for an English ship the laws 
 of Chili, out of that State, are powerless, and the lawfulness of the 
 acts must be tried by English law. (k) 
 
 By the Sea Fisheries Act 1883 (46 & 47 Vict. c. 22), s. 18, ' For the 
 purpose of giving jurisdiction to courts under this Act, a sea-fishing 
 boat shall be deemed to be a ship within the meaning of any Act 
 relating to offences committed on board a ship, and every court shall 
 have the same jurisdiction over a foreign sea-fishing boat within the 
 exclusive fishery limits of the British Islands and persons belonging 
 thereto as such court would have if such boat were a British sea- 
 fishing boat.' 
 
 By the last clause of sec. 1 of the 7 & 8 Vict. c. 2, the Court 
 might ' order the payment of the costs and expenses of the prose- 
 cution of Admiralty offences in the manner prescribed by the 7 Geo. 
 4, c. 64, in the case of felonies tried in the Court of Admiralty ; ' 
 and by the last clause in the 17 & 18 Vict. c. 104, s. 267, the costs 
 of the prosecution of any such offence as is therein mentioned may 
 be directed to be paid in the same manner as costs of prosecutions 
 for offences committed within the jurisdiction of the Admiralty of 
 England. (I) By the 45 & 46 Vict. c. 55, s. 9, ' Such costs and expenses 
 of and incidental to any prosecution for a felony or misdemeanor as 
 are by law payable out of any county or other local rate shall, when 
 such felony or misdemeanor was committed within the jurisdiction 
 of the Admiralty of England, be paid in the same manner and subject 
 to the same regulations as if such felony or misdemeanor had been 
 committed in the county in which the same is heard and determined, 
 
 (j) Dobree v. Napier, 2 Bingh. N. C. Forbes v. Cochrane, 2 B. & C. 467, per 
 
 781. It seems that vessels of war in the Best, J. 
 
 territorial limits of a foreign state are ex- (k) R. v. Lesley, Bell, C. C. 220. 
 
 empt from the jurisdiction of such state, [l) See ante, p. 18. 
 
 see Wheaton's International Law, but see
 
 24 General Provisions. [book i. 
 
 or when the same is heard and determined at the Central Criminal 
 Court as if the same had been committed in the county of Middlesex, 
 and all sums properly paid out of any county or other local rate in 
 respect of the said costs and expenses shall be repaid out of moneys 
 provided by Parliament.' 
 
 The 12 & 13 Vict. c. 96, provides that the prosecution and trial 
 in the colonies of any treason, piracy, felony, robbery, murder, con- 
 spiracy or other offence of what nature or kind soever, committed 
 upon the sea, or in any haven, river, creek or place where the admiral 
 has jurisdiction, shall be in the same manner as if such offence had 
 been committed upon any waters within the limits of such colony ; (11) 
 and that the punishment of any such offence shall be the same as if 
 it had been committed in England ; (m) and that in cases of murder 
 and manslaughter, where the death is in any colony, and the cause of 
 the death elsewhere, the offence may be dealt with, tried, and pun- 
 ished as if it had been wholly committed in that colony ; and that 
 where the death is within the jurisdiction of the Admiralty, wher- 
 ever the cause of death may have been, the offence shall be held 
 for the purpose of the Act to have been wholly committed upon 
 the sea. (n) 
 
 Offences committed by governors of colonies, &c. — By the Stat. 11 
 & 12 Will. 3, c. 12, (o) and 42 Geo. 3, c. 85, offences committed by 
 governors of colonies and others in the public service in places beyond 
 seas, may be ' prosecuted or inquired of and heard and determined 
 in His Majesty's Court of King's Bench here, in England, either upon 
 an information exhibited by His Majesty's attorney-general, or upon 
 an indictment found.' By sec. 2 of 11 & 12 Vict. c. 42, 'in all 
 cases of crimes or offences committed on land beyond the seas for 
 which an indictment may legally be preferred in any place within 
 England or Wales,' any one or more of the justices for the place in 
 which the person charged resides may issue a warrant to apprehend 
 and have him brought before them to answer the charge, and be 
 dealt with according to law. And by sees. 17 and 20 the justice or 
 justices may bind over the witnesses to appear at the next ' court of 
 oyer and terminer, or gaol delivery, &c.,' to give evidence. Held, 
 that these provisions of 11 & 12 Vict. c. 42, applied to proceedings 
 on charges under 11 & 12 Will. 3, c. 12, and 42 Geo. 3, c. 85, and 
 that a magistrate of the county within which the accused person 
 resided was bound to investigate such charges. The court of Queen's 
 Bench, in trying offences under 11 & 12 Will. 3, c. 12, and 42 Geo. 
 3, c. 85, is included within the general words ' court of oyer and 
 terminer' in sec. 20 of 11 & 12 Vict. c. 42. {p) 
 
 (11) Sec. 1. shall affect the 12 & 13 Vict. c. 96. This 
 
 (m) Sec. 2. Act is extended to India by the 23 & 24 
 
 (,i) Sec. 3. Sec. 4 provides that the Act Vict. c. 88. 
 shall not affect the jurisdiction of the Courts (o) Sees. 1 to 7 in Euffhead's ed. of the 
 
 of New South Wales and Van Diemen's stats, and sees. 13 and 15 of this stat. are 
 
 Land. The 18 & 19 Vict. c. 91, s. 21, pro- repealed by 30 & 31 Vict. c. 59. 
 vides that nothing contained in that section (p) R. v. Eyre, 11 Cox, C. C. 162.
 
 chap, i.] Description in Indictments. 25 
 
 Description of Documents and Money in an Indictment — Venue 
 
 in same. 
 
 The 14 & 15 Vict. c. 100, enacts by sec. 5, that ' in any indictment 
 for forging, uttering, (q) stealing, embezzling, destroying, or concealing, 
 or for obtaining by false pretences, any instrument, it shall be suf- 
 ficient to describe such instrument by any name or designation by 
 which the same may be usually known, or by the purport thereof, 
 without setting out any copy or fac-simile thereof, or otherwise 
 describing the same or the value thereof. 
 
 Sec. 7. ' In all other cases wherever it shall be necessary to make 
 any averment in any indictment as to any instrument, whether the 
 same consists wholly or in part of writing, print, or figures, it shall 
 be sufficient to describe such instrument by any name or designa- 
 tion by which the same may be usually known, or by the purport 
 thereof, without setting out any copy or fac-simile of the whole or 
 any part thereof.' 
 
 Sec. 18. ' In every indictment in which it shall be necessary to make 
 any averment as to any money or any note of the Bank of England or 
 any other bank, it shall be sufficient to describe such money or bank- 
 note simply as money, without specifying any particular coin or 
 bank-note ; and such allegation, so far as regards the description of 
 the property, shall be sustained by proof of any amount of coin or of 
 any bank-note, although the particular species of coin of which such 
 amount was composed, or the particular nature of the bank-note, 
 shall not be proved, and in cases of embezzlement and obtaining 
 money or bank-notes by false pretences, by proof that the offender 
 embezzled or obtained any piece of coin or any bank-note, or any 
 portion of the value thereof, although such piece of coin or bank- 
 note may have been delivered to him in order that some part of the 
 value thereof should be returned to the party delivering the same, 
 or to any other person, and such part shall have been returned 
 accordingly.' 
 
 Sec. 23, 'It shall not be necessary to state any venue in the 
 body of any indictment, but the county, city, or other jurisdiction 
 named in the margin thereof shall be taken to be the venue for all 
 the facts stated in the body of such indictment ; provided that in 
 cases where local description is or hereafter shall be required, such 
 local description shall be given in the body of the indictment ; and 
 provided also, that where an indictment for an offence committed in the 
 county of any city or town corporate shall be preferred at the assizes 
 of the adjoining county, such county of the city or town shall be 
 deemed the venue, and may either be stated in the margin of the 
 indictment, with or without the name of the county in which the 
 offender is to be tried, or be stated in the body of the indictment by 
 way of venue.' (r) 
 
 (q) So much of this sec. as relates to misdemeanor containing no statement of 
 
 forging or uttering any instrument is re- venue, either by reference or otherwise, was 
 
 pealed by 24 & 25 Vict. c. 95. See 24 & 25 bad at common law, after verdict, though a 
 
 Vict. c. 98, ss. 42, 43, vol. ii. venue were stated in the margin in the usual 
 
 (r) Before this enactment, a count for way ; for the statement in the margin only
 
 26 General Provisions. [book i. 
 
 Sec. 30. ' In the construction of this Act the word " indictment " 
 shall be understood to include " information," " inquisition," and 
 " presentment," as well as indictment, and also any " plea," " repli- 
 cation," or other pleading, and any nisi prius record ; and the terms 
 "finding of the indictment" shall be understood to include "the 
 taking of an inquisition," " the exhibiting of an information," and 
 " the making a presentment ; " and wherever in this Act, in describ- 
 ing or referring to any person or party, matter or thing, any word 
 importing the singular number or masculine gender is used, the same 
 shall be understood to include and shall be applied to several persons 
 and parties as well as one person or party, and females as well as 
 males, and bodies corporate as well as individuals, and several mat- 
 ters and things as well as one matter or thing ; and the word 
 " property " shall be understood to include goods, chattels, money, 
 valuable securities, and every other matter or thing, whether real 
 or personal, upon or with respect to which any offence may be 
 committed.' 
 
 Stating Names of Partners and Ownership of Property in 
 Indictments. 
 
 Property of Partners. — The 7 Geo. 4, c. 64, s. 14, enacts, ' that in 
 any indictment or information for any felony or misdemeanor wherein 
 it shall be requisite to state the ownership of any property whatsoever, 
 whether real or personal, which shall belong to or be in the posses- 
 sion of more than one person, whether such persons be partners in 
 trade, joint-tenants, parceners, or tenants in common, it shall be 
 sufficient to name one of such persons, and to state such property to 
 belong to the person so named, and another or others, as the case may 
 be, and whenever, in any indictment or information for any felony 
 or misdemeanor, it shall be necessary to mention, for any purpose 
 whatsoever, any partners, joint-tenants, parceners, or tenants in com- 
 mon, it shall be sufficient to describe them in the manner aforesaid ; 
 and this provision shall be construed to extend to all joint stock 
 companies and trustees.' (s) 
 
 Where a Bible and hymn book had been given to a society of 
 Wesleyans, at whose expense they had been bound, and they were 
 laid in an indictment as the property of B. ' and others,' B. being both 
 a trustee and a member of the society, it was held that the property 
 was rightly laid, (t) So where the property in ore stolen from a 
 mine was stated to be in S. Davey ' and others,' who were proved to 
 be the adventurers in the mine, and it was objected that they were 
 not partners, joint-tenant, or tenants in common, within the 7 Geo. 
 4, c. 64, s. 14, the objection was overruled, (u) 
 
 implied that the indictment was found by a (t) E. v. Boulton, 5 C. & P. 537. Parke, 
 
 grand jury, of the county named. P.. v. J., S. O, MS. C. S. G. 
 
 O'Connor, 5 Q. B. 16. But since this sec- (u) R. v. Webb, R. & M. C. C. K. 431, 
 
 tion such a count is good. per Patteson, J., on the trial ; but the point 
 
 (s) The Irish Act, 9 Geo. 4, c. 54, s. 28, was mentioned to the judges afterwards, who 
 
 is similar to this sectiou. gave no opinion upon it, deciding the case 
 
 on another ground. See the case, vol. ii.
 
 chap. I.] Names in Indictments. 27 
 
 If an indictment allege property to belong to A. B. and others, 
 and it appears that A. B. has only one partner, it is a variance, (v) 
 
 An indictment for attempting to obtain one thousand yards of 
 silk by false pretences, alleged that the pretences were made to 
 J. Baggally and others ; by means whereof the prisoner did attempt 
 to obtain from the said J. Baggally and others the silk in question, 
 the property of the said J. Baggally and others, with intent to cheat 
 the said J. Baggally and others of the same. J. Baggally and others 
 were partners in trade, and the pretences were made to J. Baggally, 
 but none of the partners were present when the pretences were made, 
 nor did the pretences ever reach the ears of any of them. It was 
 objected that there was a variance, as the evidence did not shew that 
 the pretences were made to J. Baggally and others ; but the objection 
 was overruled, and, upon a case reserved, it was held the conviction 
 was right, (iv) 
 
 Property belonging to counties. — The 7 Geo. 4, C. 64, S. 15, with 
 respect to the property of counties, ridings, and divisions, enacts, 
 ' that in any indictment or information for any felony or misde- 
 meanor committed in, upon, or with respect to any bridge, court, 
 gaol, house of correction, infirmary, asylum, or other building erected 
 or maintained, in whole or in part, at the expense of any county, 
 riding, or division, or on or with respect to any goods or chattels 
 whatsoever, provided for or at the expense of any county, riding, or 
 division, to be used for making, altering, or repairing any bridge, or 
 any highway at the ends thereof, or any court, or other such building 
 as aforesaid, or to be used in or with any such court, or other build- 
 ing, it shall be sufficient to state any such property, real or personal, 
 to belong to the inhabitants of such county, riding, or division ; and it 
 shall not be necessary to specify the names of any such inhabitants.' 
 
 On an indictment for stealing brass, the property of the inhabitants 
 of the county of Gloucester, it appeared that some alterations had 
 been made in the ball and concert room which formed part of the 
 Shire Hall, and a brass chandelier, which hung from the roof of the 
 room, was taken down, and laid aside in a room in the Shire Hall. 
 The prisoner afterwards sold this chandelier as old brass. It was 
 objected that the ball room was not within the term building in the 
 preceding section, and that the chandelier was not a thing ' used in 
 or with ' such building at the time when it was stolen ; but it was 
 held that the room was clearly a building within the clause, and that 
 the chandelier was also clearly within it. (x) 
 
 Guardians of poor. — The 5 & 6 Wni. 4, c. 69, an Act to facilitate 
 the conveyance of workhouses and other propert) T of parishes and 
 unions, by sec. 7 provides that ' the guardians of the poor of every 
 union already formed, or which hereafter shall be formed, by virtue 
 
 (v) Hampton's case, Greenw. Coll. St. prisoners in it. C. S. G. The prisoner was 
 143, Denman, Com. Serj. See Wright's also held to be merely the servant of the in- 
 case, 1 Lewin, 268, Bayley, J. R. v. Kealey, habitants of the county. Qucere whether 
 2 Den. 68 ; 20 L. J. M. C. 57. this clause is anything more than declara- 
 (w) R. v. Kealey, 2 Den. C. C. 68. tory of the common law, and whether an 
 (x) R. v. Winbow, 5 Cox, C. C. 346. indictment is not sufficient in all cases which 
 The room is parcel of the entire building, alleges any property to belong to the inhab- 
 which includes the two Courts, Grand Jury itants of a county ? 
 room, Counsel room, &c, and I have tried
 
 28 General Provisions. [book i. 
 
 of the aforesaid Act, passed in the fourth and fifth years of his present 
 Majesty, and of every parish placed under the control of a board of 
 guardians by virtue of the said Act, shall respectively, from the day 
 of their first meeting as a board, become, or be deemed to have become, 
 and they and their successors in office shall for ever continue to be, for 
 all the purposes of this Act, a corporation, by the name of the guar- 
 dians of the poor of the union, (or of the parish of ) in 
 the county of ; and as such corporation the said guardians are 
 hereby empowered to accept, take and hold, for the benefit of such 
 union or parish, any buildings, lands, or hereditaments, goods, effects, 
 or other property, and may use a common seal ; and they are further 
 empowered by that name to bring actions, to prefer indictments, and 
 to sue and be sued, and to take or resist all other proceedings for or in 
 relation to any such property, or any bonds, contracts, securities, or 
 instruments, given or to be given to them in virtue of their office ; and 
 in every such action and indictment relating to any such property, it 
 shall be sufficient to lay or state the property to be that of the guar- 
 dians of the union, or of the parish of ; and in case of 
 any addition to or separation of any parishes from any such union, 
 under the authority of the said Act, passed in the fourth and fifth 
 years of the reign of his present Majesty, the board of guardians for 
 the time being shall (notwithstanding such alteration) have and enjoy 
 the same corporate existence, property and privileges, as the board of 
 guardians of the original union would have had and enjoyed had it 
 remained unaltered.' {y) 
 
 By the 7 Geo. 4, c. 64, s. 16, ' in any indictment or information 
 for any felony or misdemeanor committed upon or with respect to 
 any workhouse, or poor-house, or on or with respect to any goods or 
 chattels whatsoever, provided for the use of the poor of any parish 
 or parishes, township or townships, hamlet or hamlets, place or places, 
 or to be used in any workhouse or poor-house, in or belonging to the 
 same, or by the master or mistress of such workhouse or poor-house, 
 or by any workmen or servants employed therein, it shall be sufficient 
 to state any such property to belong to the overseers of the poor (z) 
 for the time being of such parish or parishes, township or townships, 
 hamlet or hamlets, place or places, and it shall not be necessary to 
 specify the names of all or any of such overseers ; (a) and in any 
 indictment or information for any felony or misdemeanor committed 
 
 (y) See vol. ii. : 'Post Office.' See 5 &6 under this statute might state them to he 
 
 Vict. c. 57, s. 16. the goods of the overseers of the poor for the 
 
 {z) As to the description in an indict- time being of the parish of A., and that this 
 
 merit against a collector or assistant overseer sufficiently imported that they belonged at 
 
 for embezzlement, &c, see 12 & 13 Vict, the time of the theft to the persons who were 
 
 c. 103, s. 15, vol. ii. : 'Embezzlement.' then the overseers. Thus, where the indict- 
 
 (a) The 55 Geo. 3, c. 137, s. 1, vests ment stated that the prisoner, 61bs. weight 
 
 goods, furniture, apparel, &c, provided for of pork of the goods and chattels of the 
 
 the use of the poor in the overseers of the overseers of the poor for the time being of the 
 
 parish, &c, for the time being, and their parish of K., feloniously did steal, &c, and 
 
 successors, and enacts that in any indict- a case was reserved on the question whether 
 
 ment in respect of such goods, &c., the said this was properly laid, the judges were of 
 
 goods, &c, shall be laid or described to be opinion that it sufficiently imported that 
 
 the property of the overseers of the poor for the goods at the time of the theft were the 
 
 the time being of such parish, &c, without property of the then overseers, and therefore 
 
 stating or specifying their names. It was held the conviction right. R. v. Went, MS. 
 
 held that an indictment for stealing goods Bayley, J., and R. & R. 359.
 
 chap, i.] Names in Indictments. 29 
 
 on or with respect to any materials, tools, or implements provided for 
 making, altering, or repairing any highway within any parish, town- 
 ship, hamlet or place, otherwise than by the trustees or commissioners 
 of any turnpike road, it shall be sufficient to aver that any such 
 things are the property of the surveyor or surveyors of the highways 
 for the time being of such parish, township, hamlet or place, and it 
 shall not be necessary to specify the name or names of any such sur- 
 veyor or surveyors. 
 
 Turnpike trustees. — Sec. 17, with respect to the property under 
 turnpike trusts, enacts ' that in any indictment or information for 
 any felony or misdemeanor committed on or with respect to any 
 house, building, gate, machine, lamp, board, stone, post, fence, or other 
 thing erected or provided in pursuance of any Act of Parliament for 
 making any turnpike road, or any of the' conveniences or appurten- 
 ances thereunto respectively belonging, or any materials, tools, or 
 implements provided for making, altering, or repairing any such road, 
 it shall be sufficient to state any such property to belong to the trus- 
 tees or commissioners of such road, and it shall not be necessary to 
 specify the names of any of such trustees or commissioners.' (b) 
 
 Commissioners of Sewers. — Sec. 18, with respect to property under 
 commissioners of sewers, enacts ' that in any indictment or informa- 
 tion for any felony or misdemeanor committed on or with respect to 
 any sewer or other matter within or under the view, cognizance, or 
 management of any commissioners of sewers, it shall be sufficient to 
 state any such property to belong to the commissioners of sewers 
 within or under whose view, cognizance, or management, any such 
 things shall be, and it shall not be necessary to specify the names 
 of any of such commissioners.' 
 
 Joint-stock banks. — The 7 Geo. 4, c. 46, an Act for the better regu- 
 lating of copartnerships of certain bankers in England, provides in 
 what cases, and under what circumstances, copartnerships of more 
 than six persons may carry on business in England ; and by sec. 9, 
 ' all indictments, informations, and prosecutions, by or on behalf of 
 such copartnership, for any stealing or embezzlement of any money, 
 goods, effects, bills, notes, securities, or other property of or belonging 
 to such copartnership, or for any fraud, forgery, crime or offence com- 
 mitted against or with intent to injure or defraud such copartnership, 
 shall and lawfully may be had, preferred, and carried on in the name 
 of any one of the public officers, nominated as aforesaid, for the time 
 being of such copartnership, and that in all indictments and informa- 
 tions to be had or preferred by or on behalf of such copartnership 
 against any person or persons whomsoever, notwithstanding such 
 person or persons may happen to be a member or members of such 
 copartnership, it shall be lawful and sufficient to state the money, 
 goods, effects, bills, notes, securities, or other property of such copart- 
 nership, to be the money, goods, effects, bills, notes, securities, or other 
 property of any one of the public officers, nominated as aforesaid, for 
 the time being of such copartnership, and that any forgery, fraud, 
 crime, or other offence committed against, or with intent to injure or 
 
 (b) See 3 Geo. 4, c. 126, s. 60, by which the trustees or commissioners of a turnpike 
 the property in certain things is vested in road.
 
 30 General Provisions. [book i. 
 
 defraud any such copartnership, shall and lawfully may in such in- 
 dictment or indictments, notwithstanding as aforesaid, be laid or 
 stated to have been committed against, or with intent to injure or 
 defraud any one of the public officers, nominated as aforesaid, for the 
 time being of such copartnership, and any offender or offenders may 
 thereupon be lawfully convicted for any such forgery, fraud, crime, or 
 offence ; and that in all other allegations, indictments, informations, 
 or other proceedings of any kind whatsoever, in which it otherwise 
 might or would have been necessary to state the names of the persons 
 composing such copartnership, it shall and may be lawful and suffi- 
 cient to state the name of any one of the public officers, nominated as 
 aforesaid, for the time being of such copartnership ; and the death, 
 resignation, removal, or any act of such public officer, shall not abate 
 or prejudice any such action, suit, indictment, information, prosecu- 
 tion, or other proceeding, commenced against or by or on behalf of 
 such copartnership, but the same may be continued, prosecuted, and 
 carried on in the name of any other of the public officers of such co- 
 partnership for the time being.' 
 
 It is not imperative upon the banking companies constituted under 
 this Act to prosecute in the name of one of their public officers ; thus 
 it has been held in a case of forgery that they were not bound to allege 
 an intent to defraud one of their public officers, but might lay the 
 intent to be to defraud one of the shareholders by name ' and others,' 
 under the 1 Wm. 4, c. 66, s. 28. (c) And where, on an indictment for 
 stealing certain brasses, the property of P. Williams and others, which 
 belonged to a colliery which was worked by the Dudley and West 
 Bromwich Bank, and no registration of that company as a joint-stock 
 banking company or of the appointment of any manager or public 
 officer thereof was proved, but it was stated by a witness that P. 
 Williams was one of the partners or shareholders in the bank, and 
 that there were more than twenty partners, and that it was a joint- 
 stock banking company ; it was objected that the property ought to 
 have been laid in the public officer of the company under the 7 Geo. 4, 
 c. 46, s. 9, and Chaplain v. Milvain (d) was relied upon ; but, upon a 
 case reserved, it was held that the 7 Geo. 4, c. 64, s. 14, which ex- 
 pressly extends to all joint-stock companies, and which was passed 
 after the 7 Geo. 4, c. 46, was a sufficient authority for laying the 
 property in one of the partners by name ' and others.' (e) 
 
 (c) K. v. Beard, 8 C. & P. 143, Cole- (e) ~R.v. Pritchard, L. & C. 34 ; 30 L.J. 
 
 ridge, J. In R. v. Burgiss, 7 C. & P. 488, M. C. 169. This decision is in accordance 
 
 Littledale, J., had expressed great doubts on with my note to the third edition, and set- 
 
 the point ; but in R. v. James, 7 C. & P. ties the doubt in R. v. Carter, 1 Den., C. C. 
 
 553, Patteson, J., had expressed an opinion 65, whether in forgery the intent may be 
 
 that either the one mode or the other might laid to defraud one of the shareholders and 
 
 be adopted. And it should seem that there others. In the course of the argument, 
 
 is no doubt that an indictment laying prop- Pollock, C. B., said : 'Suppose they are not 
 
 erty to belong to one member of such a registered, may anybody go and steal their 
 
 company by name, ' and others,' would be property without being punished for it ? ' 
 
 good, especially as the 7 Geo. 4, c. 64, s. 14, Blackburn, J., 'Granting all that you as- 
 
 extends to ' all joint stock companies,' ante, sume (i. e. that the company was carrying 
 
 p. 24. C. S. G. on their business legally), suppose more than 
 
 (d) 5 Exch. R. 61, where it was held six persons own a chattel, a horse for in- 
 
 that in an action against a shareholder the stance, and afterwards engage in business as 
 
 company are bound to sue in the name of bankers, would that alter the property in 
 
 one of their officers. the horse ? ' In Bonar v. Mitchell, 5 Exch.
 
 chap, i.] Names in Indictments. 31 
 
 In an indictment for forgery it has been held sufficient to aver the 
 intent to be to defraud E. B., ' then and there being one of the public 
 officers for the time being of a certain copartnership of persons carry- 
 ing on the trade and business of bankers in England, exceeding the 
 number of six persons, and called the National Provincial Bank of 
 England ; ' and that it is not necessary to aver that E. B. was nomi- 
 nated under the 7 Geo. 4, c. 46. (/) 
 
 The return made to the Stamp Office under the 7 Geo. 4, c. 46, is 
 not the only mode of proving that a person is a public officer ; that 
 fact may be proved by other evidence, (g) An examined copy of the 
 return is as good evidence as the return, (h) 
 
 The 7 Geo. 4, c. 46, was amended and continued by the 1 & 2 
 Vict. c. 96, and is further continued by the 3 & 4 Vict, c 111, (i) 
 and sec. 2 of that Act enacts, that ' If any person or persons, being 
 a member or members of any banking copartnership within the 
 meaning of the said Act, or of any other banking copartnership con- 
 sisting of more than six persons, formed under or in pursuance of 
 an Act passed in the third and fourth years of the reign of King 
 William the Fourth, intituled " An Act for giving to the corporation 
 of the governor and company of the Bank of England certain privi- 
 leges for a limited period, under certain conditions," (j) shall commit 
 any fraud, forgery, crime, or offence against or with intent to injure 
 or defraud any such copartnership, such member or members shall be 
 liable to indictment, information, prosecution, or other proceeding in 
 the name of any of the officers for the time being of any such copart- 
 nership, in whose name any action or suit might be lawfully brought 
 against any member or members of any such copartnership for every 
 such fraud, forgery, crime, or offence, and may thereupon be lawfully 
 convicted, as if such person or persons had not been or was or were 
 not a member or members of such copartnership, any law, usage or 
 custom to the contrary notwithstanding.' 
 
 R. 415, it was held that a plea that a com- been ' duly nominated and appointed, and 
 
 pany had not made a return to the Stamp now is one of the public officers of the said 
 
 Office in pursuance of the statute was bad ; company according to the force, form, and 
 
 and Alderson, B., in answer to an argument effect of the said Act.of Parliament.' Spiller 
 
 that these companies were bound to observe v. Johnson, 6 M. and W. 570. So it has 
 
 the conditions imposed on them by the Act, been held sufficient to state in the declara- 
 
 said, ' according to such an argument it tion that the plaintiff is the manager of a 
 
 would be a good defence to a charge of lar- certain joint-stock copartnership, established 
 
 ceny against a person for having stolen the for the purpose of banking, and that he has 
 
 company's goods, that, they had not made been duly named and appointed as the nom- 
 
 any sufficient return as required by the stat- inal plaintiff on behalf of the copartnership 
 
 ute. If the company were to make any under the provisions of the statute, without 
 
 single mistake in the course of twenty years, expressly stating that he has been named as 
 
 they would lose the right of suing in the manager, or that the copartnership has been 
 
 mode given them by the Act ; ' and Pollock, established under the provisions of the Act. 
 
 C. B., thought that the penalty imposed by Christie v. Peart, 7 M. & W. 491. 
 sec. 14, was intended to cure these omis- (g) Edwards v. Buchanan, 3 B. & Ad. 
 
 sions ; and Alderson, B., said that it was 788. R. v. Beard, supra. See Bosancpiet 
 
 clear that the section was only directory. v. Woodford, 5 Q. B. 310. Prescott v. 
 
 G. S. G. Buffery, 1 C. B. 41. Steward v. Dunn, 12 
 
 (J) R. v. Beard, supra. So it has been M. & W. 655. 
 held in an action brought in the name of a (h) R v. Carter, 1 Den. C. C. 65. 1 C. 
 
 public officer of such a company, that it is & K. 74 L. 
 
 not necessary to allege in the declaration (i) By the 5 & 6 Vict. c. 85, the 1 & 2 
 
 that he is a member of the company, that Vict. c. 96, ' as extended by ' the 3 & 4 
 
 he is resident in England, or that he has Vict. c. Ill, is made perpetual, 
 been duly registered as required by sec. 4 ; (j) Here follow some words repealed by 
 
 but that it is sufficient to allege that he has the Statute Law Revision Act, 1874.
 
 32 General Provisions. [book i. 
 
 The prisoner was convicted of the embezzlement of three sums of 
 money on an indictment, in which one class of counts described him as 
 clerk of Teather and others, and another as clerk of Teather, ' one of the 
 public officers of the Carlisle and Cumberland Banking Company.' The 
 prisoner was employed as clerk by a banking company established under 
 the 7 Geo. 4, c. 46. A return, as required by sec. 4, had been made, and 
 was proved by a certificate under sec. 6 ; in this return the true name 
 of the copartnership was stated to be ' The Carlisle and Cumberland 
 Joint Stock Bank,' the names or firms of the banks established or' to 
 be established by the copartnership were stated to be ' Carlisle and 
 Cumberland Bank' at Carlisle, at Wigton, and at Appleby, and 
 Teather was described as a partner and one of the public officers. 
 The manager of the bank proved that the usual and only name em- 
 ployed by the copartnership in their dealings was ' The Carlisle and 
 Cumberland Banking Company,' and they were described by the same 
 name in a bond of the prisoner to the company, which was in evidence. 
 The prisoner at the time of the transaction was a shareholder or 
 partner in the company. It was objected, 1, that there was a variance, 
 as the return proved the true name to be different from that laid in 
 the indictment, 2, that the indictment could only be in the name of 
 an officer nominated as mentioned in the 7 Geo. 4, c. 46. (Je) But, on 
 a case reserved, the majority of the judges were of opinion that the 
 company described in the register were the same that had appointed 
 Teather, acting under the name of the Carlisle and Cumberland 
 Banking Company to the world, and so admitted by the prisoner in 
 his bond ; and that there was no variance. (/) 
 
 Friendly Societies — By 38 & 39 Vict. c. 60 (the Friendly Socie- 
 ties Act, 1875), s. 16, sub-sec. 5, in all legal proceedings whatsoever 
 concerning any such (m) property the same shall be stated to be the 
 property of the trustees for the time being, in their proper names as 
 trustees for the society or branch (as the case may be) without further 
 description. By the Industrial and Provident Societies Act, 1893, 
 (56 & 57 Vict. c. 39), s. 21, 'the registration of a society shall render 
 it a body corporate by the name described in the acknowledgment of 
 registry by which it may sue and be sued, with perpetual succession 
 and a common seal, and with limited liability ; and shall vest in the 
 society all property for the time being vested in any person in trust 
 for the society ; and all legal proceedings pending by or against the 
 trustees of any such society may be prosecuted by or against the 
 society in its registered name without abatement.' (n) The following 
 cases were decided under the repealed Friendly Societies Act: The in- 
 dictment charged the prisoner with stealing a ten-pound promissory 
 note, the property of W. Shildrick. Shildrick was treasurer of a friendly 
 society at Cambridge. The prisoner was clerk and trustee of the same 
 
 (k) A third objection was, that the 1 & (m) All property belonging to the society. 
 
 2 Vict. c. 96, was not continued by the (?i) By 56 & 57 Vict. c. 39, s. 64, which 
 
 3 & 4 Vict. c. Ill, by reason of the erro- provides for the summary punishment of 
 neous recital in the latter Act ; this objec- offences against Industrial and Provident 
 tion was overruled on the ground that no Societies, nothing in the section is to prevent 
 other Act could be meant. the person being proceeded against by way 
 
 (/) 1!. v. Atkinson, 2 Moo. 0. C. 278; of indictment unless he has previously been 
 C. & M. 525. No notice was taken of the convicted of the same offence under this 
 second objection. Act.
 
 chap. I.] Names in Indictments. 33 
 
 society. Scarr was also trustee. The rules of the society had been 
 re-enrolled pursuant to the 10 Geo. 4, c. 56, as amended by the 4 & 5 
 Wm. 4, c. 40. (o) By a rule of the society it was provided that as 
 soon as ten pounds more than was necessary for immediate use was in 
 the box, it should be delivered to the trustees chosen for that purpose, 
 who should dispose of it as the society should direct, agreeably to the 
 10 Geo. 4, c. 56, s. 13. It was the duty of the treasurer to receive 
 from the stewards the money paid by the members, which the 
 treasurer kept till twenty or thirty pounds were collected, when he 
 proposed that a certain amount should be deposited in the savings' 
 bank. The duty of the prisoner as clerk was to keep the books, and 
 as trustee to deposit and take money from the savings' bank. Either 
 of the trustees could draw out money if he brought the book. Upon 
 a club night previous to the 16th of January it was settled that ten 
 pounds should be paid into the bank ; the prisoner did not wish to 
 take it then ; but it was arranged that the trustees should come to 
 take the money on the following Saturday. On Saturday, the 16th 
 of January, the prisoner went to the treasurer's house alone, and 
 made a false statement, whereupon the treasurer gave him the promis- 
 sory-note in question, and the jury found that the prisoner obtained 
 the note from the treasurer with intent to steal it. It was objected, 
 on behalf of the prisoner, that, as he was a trustee, the property in the 
 note was vested either wholly or in part in him, and that it was not the 
 sole property of the treasurer; it was answered, that by the 10 Geo. 4, 
 c. 56, s. 21, all the effects of the society were vested in the treasurer 
 or trustee for the time being, and were, for the purposes of suit, 
 civil or criminal, to be the property of the treasurer or trustee for the 
 time being, and that the meaning of this clause was to vest the prop- 
 erty in one officer, and one only, whether he should be called treasurer 
 or trustee, and that the treasurer in this case was that person. Upon 
 a case reserved on the cpiestion whether the property was rightly 
 laid in the treasurer, the judges were of opinion that the conviction 
 was right, the treasurer, on the facts stated, being substantially the 
 officer intended. (j>) On an indictment for larceny as a bailee, and 
 also for common larceny of the money of R. Carraway, it appeared 
 that Carraway was the treasurer of a lodge of Odd Fellows, which 
 was a friendly society duly enrolled, and the prisoner was one of its 
 trustees. At a lodge meeting it was resolved that £40 should be 
 sent to the bank of Messrs. Gurney, and that the prisoner should 
 take it there. The £40 in gold and silver was taken from a box, 
 which was in Carraway's keeping as treasurer, by a person who acted 
 for him, and put into a bag and carried away by the prisoner, who 
 dishonestly applied it to his own purposes. It was objected, that 
 the money was not proved to be the money of Carraway, and that 
 R. v. Cain (q) did not apply, because the 18 & 19 Vict. c. 63, s. 18, 
 now repealed, vested the property in the trustees and not in the 
 treasurer, and that, supposing Carraway had a special property in the 
 money, that property ceased as soon as the money was paid into 
 the hands of the prisoner. On a case reserved, it was held that the 
 
 (o) These Acts are repealed by the 18 (p) K. v. Cain, 2 Moo. C. C. 204. C. & 
 
 & 19 Vict. c. 63. M. 309. 
 
 iq) Supra. 
 VOL. I. — 3
 
 34 General Provisions. [book i. 
 
 conviction on the indictment in this form could not be sustained. 
 In B. v. Cain the property was rightly laid in the treasurer under 
 the 10 Geo. 4, c. 56 ; but in this case the money was not vested in 
 the treasurer but in the trustees, of whom the prisoner was one, and 
 he was specially appointed by a resolution of the society to take the 
 money to the bank. It therefore could not be said that he stole the 
 money, the property of the treasurer. As soon as the treasurer parted 
 with the money he had nothing more to do with it. The prisoner 
 might have been guilty of a breach of trust as against the other 
 trustees, but it could not be said that he stole the money of the 
 treasurer, (r) The prisoner was indicted for embezzling in 1842 
 money the property of H. W. Sitwell, and it was proved that the 
 prisoner as clerk to the Rugby Savings' Bank had received and 
 embezzled money which was the property of the trustees of the 
 bank under the 9 Geo. 4, c. 92, s. 8. There was no rule or stat- 
 ute regulating the mode in which trustees should be appointed, or 
 the mode in which resolutions of meetings should be entered. For 
 the purpose of showing that Mr. Sitwell was trustee in 1842, Mr. 
 Sitwell proved that from 1843 he had acted as trustee, but before 
 1843 he had only attended meetings of trustees, and when he had 
 so attended he had signed the minute-book. The only entry to be 
 found with his signature was for a meeting in 1835, and he stated 
 that he had been requested by a person acting as a trustee to attend 
 that meeting as a trustee lest there should be a deficiency of trus- 
 tees, and that he had attended and signed the entry accordingly. 
 The prisoner was at that meeting, and the heading of the page con- 
 taining the resolutions was in his handwriting. Mr. Sitwell did not 
 express by the signature that he was a trustee, or that he signed in 
 that capacity. He did not do any act which trustees alone were 
 capable of doing. All trustees and managers had an equal right to 
 attend the meeting; there was nothing to show that a meeting of 
 managers only, without any trustee, would have been invalid, and 
 Mr. Sitwell, as rector of the parish, was ex officio a manager. Erie, J., 
 held that there was evidence that Mr. Sitwell acted as trustee in 
 1835, and that that was some evidence, though very slight, that 
 Mr. Sitwell was trustee in 1842 ; but, upon a case reserved, it was 
 held that the evidence was insufficient, (s) 
 
 Savings' banks. — The 26 & 27 Vict. c. 87, which consolidates the 
 laws relating to savings' banks, by sec. 10 vests the effects of such 
 institutions in the trustee or trustees for the time being, and in all 
 criminal proceedings the property may be stated to be that of the 
 trustee or trustees for the time being, 'in his, her, or their proper 
 name, without further description.' 
 
 The preceding clause is a re-enactment of the 9 Geo. 4, c. 92, s. 8, 
 and where an indictment whilst that Act was in force alleged that 
 the prisoner embezzled the property of W. T. and others, and it 
 appeared that W. T. and others were trustees of a savings' bank ; it 
 was objected that these trustees were neither partners, joint tenants, 
 parceners or tenants in common, within the 7 Geo. 4, c. 64, s. 14, and 
 that the trustees ought to have been described by their names under 
 
 (r) R. v. Loose, Bell, C. C. 259. (s) R. v. Essex, D. & B. 369.
 
 chap. I.] Names in Indictments. 35 
 
 the 9 Geo. 4, c. 92, s. 8 ; but Erie, J., held that the property was 
 properly described ; and that the term ' trustees ' in the 7 Geo. 4, 
 c. 64, s. 14, must be taken to refer to trustees of savings' banks, and 
 that the 9 Geo. 4, c. 92, s. 8, did not take away the right to lay the 
 property under the preceding Act. (t) 
 
 Loan societies. — By 3 & 4 Vict. c. 110, (u) (entitled an Act to 
 amend the law relating to Loan Societies), s. 8, it is enacted, ' that all 
 monies and securities for money, and all chattels whatsoever, belong- 
 ing to any society, shall be vested in a trustee or trustees for the use 
 and benefit of such society and the members thereof, their executors 
 and administrators respectively, according to their several shares and 
 interests therein, and after the death, resignation, or removal of any 
 trustee or trustees shall vest in the surviving or succeeding trustee 
 or trustees for the same estate and interest as the former trustee or 
 trustees had therein, and subject to the same trusts, without any as- 
 signment or conveyance whatever, and also shall for all purposes of 
 suit, as well criminal as civil, at law or in equity, in anywise concern- 
 ing the same, be deemed to be the property of the person or persons 
 appointed to the office of trustee or trustees of such society for the 
 time being, in his or their proper name or names without further 
 description ; and such person or persons are hereby respectively au- 
 thorized to bring or defend, or cause to be brought or defended, any 
 suit, criminal as well as civil, at law or in equity, concerning the 
 property or any claim of such society, and to sue and be sued, plead 
 and be impleaded, in his or their proper name or names, as trustee or 
 trustees of such society, without any other description, and no suit 
 shall abate or be discontinued by the death of such person or persons, 
 or his or their removal from the office of trustee or trustees, as afore- 
 said, but the same shall and may be proceeded in and by or against 
 the succeeding trustee or trustees, and such succeeding trustee or 
 trustees shall pay or receive like costs for the benefit of or to be reim- 
 bursed from the funds of such society as if the suit had been com- 
 menced in his or their name or names.' 
 
 Benefit building societies. — By 37 & 38 Vict. c. 42 (the Building 
 Societies' Act, 1874), s. 9, every society upon receiving a certificate of 
 incorporation under this Act becomes a body corporate by its regis- 
 tered name. 
 
 Trade unions. — By 34 & 35 Vict. c. 31 (the Trade Union Act, 1871), 
 s. 8, all real and personal estate whatsoever belonging to any trade 
 union registered under this Act shall be vested in the trustees for the 
 time being of the trade union appointed as provided by this Act, for 
 the use and benefit of such trade union and the members thereof, and 
 the real or personal estate of any branch of a trade union shall be 
 vested in the trustees of such branch, and be under the control of 
 such trustees, their respective executors or administrators, accord- 
 ing to their respective claims and interests, and upon the death or 
 removal of any such trustees the same shall vest in the succeeding 
 
 (t) R. v. Bull, 1 Cox, C. C. 137. An not be laid in one church warden by name 
 
 anonymous case is cited in this case, where and others. 
 
 it is said that Wightman, J., held that the (u) This Act is made perpetual by 26 
 
 7 Geo. 4, c. 64, s. 14, only applied to ordi- & 27 Vict. c. 56. 
 nary trustees, and therefore property could
 
 36 General Provisions. [book i. 
 
 trustees for the same estate and interest as the former trustees had 
 therein, and subject to the same trusts, without any conveyance or 
 assignment whatsoever, save and except in the case of stocks and se- 
 curities in the public funds of Great Britain and Ireland, which shall 
 be transferred into the names of such new trustees ; and in all actions, 
 or suits, or indictments, or summary proceedings before any court of 
 summary jurisdiction, touching or concerning any such property, the 
 same shall be stated to be the property of the person or persons for 
 the time being holding the said office of trustee, in their proper names, 
 as trustees of such trade union, without any further description. By 
 39 & 40 Vict. c. 22, s. 3, the property of a registered trade union is 
 vested in trustees, and may be stated to be their property in any 
 indictment in their proper names as trustees of such trade union 
 without further description, (v) 
 
 Custom House Property. — By 39 & 40 Vict. c. 36, s. 29, any 
 moneys, chattels, or valuable securities, which may be received in 
 the service of the Customs, may be stated in any indictment as the 
 property of Her Majesty. 
 
 Property sent by post. — By the 1 Vict. c. 36, s. 40, letters, money, 
 &c, sent by the post, may be laid as the property of the Postmaster- 
 General. 
 
 The separate property of a married woman may be laid as her 
 property, (w) and it is not necessary to describe it as her husband's, 
 which must be done if the goods are his, but in her possession, (x) 
 The goods of a feme sole, who has since married may be laid in her 
 maiden name, (y) 
 
 What defects in indictments cured — Informal conclusions — How 
 objectio7is to be taken. 
 
 By the 14 & 15 Vict. c. 100, s. 24, ' no indictment (z) for any offence 
 shall be held insufficient for want of the averment of any matter un- 
 necessary to be proved, nor for the omission of the words " as appears 
 by the record," or of the words " with force and arms," or of the words 
 " against the peace," (a) nor for the insertion of the words " against the 
 form of the statute," (b) instead of " against the form of the statutes," 
 or vice versa, nor for that any person mentioned in the indictment is 
 designated by a name of office, or other descriptive appellation, instead 
 of his proper name, nor for omitting to state the time at which the 
 offence was committed in any case where time is not of the essence 
 of the offence, nor for stating the time imperfectly, nor for stating the 
 offence to have been committed on a day subsequent to the finding 
 
 (y) S. 9 provides for the carrying on of a (a) See the interpretation clause, s. 30, 
 
 prosecution in case of death or removal from ante, p. 26. 
 
 office of a trustee. S. 12 provides that no (a) Before this Act an indictment for a 
 
 person shall be proceeded against by indict- common law felony must have contained a 
 
 ment for any offence of which he shall have contra pacem, and so must have an indict- 
 
 been previously summarily convicted under ment for stealing articles, the stealing of 
 
 the Act. which was made felony by statute ; R. v. 
 
 (w) 45 & 46 Vict. c. 75, s. 12. Cook, M.S., Bayley, J., and R. & R. 176. 
 
 (x) 2 East, P. C. 652. R. v. French, (b) See cases before this Act. Phipoe's 
 
 Russ. & Ry. 491. R. v. Wilford, Russ. & case, 1795. 2 East, P. C. c. 16, s. 37, pp. 599, 
 
 Ry. 517. 601. Morgan's case, 2 .East, P. C. c. 16, 
 
 (y) R. v. Turner, 1 Leach, 536. s. 37, p. 601.
 
 chap. I.] Defects in Indictments. 37 
 
 of the indictment, or on an impossible day, or on a day that never 
 happened, nor for want of a proper or perfect venue, nor for want 
 of a proper or formal conclusion, nor for want of or imperfection 
 in the addition of any defendant, nor for want of the statement of 
 the value or price of any matter or thing, or the amount of damage, 
 injury, or spoil, in any case where the value or price, or the amount of 
 damage, injury, or spoil, is not of the essence of the offence.' (c) 
 
 An indictment for an indecent exposure of the person in the sight 
 of A. and B., and divers of the liege subjects of the queen, concluded 
 ' to the great scandal of the said liege subjects,' &c, and it was ob- 
 jected that it was bad because it did not conclude ad commune 
 nocumentum ; but it was held, on a case reserved, that the 14 & 15 
 Vict. c. 100, s. 24, rendered that conclusion unnecessary, (d) 
 
 Sec. 25. 'Every objection to any indictment (e) for any formal 
 defect apparent on the face thereof shall be taken, by demurrer or 
 motion to quash such indictment, before the jury shall be sworn, and 
 not afterwards ; and every court before which any such objection shall 
 be taken for any formal defect may, if it be thought necessary, cause 
 the indictment to be forthwith amended in such particular by some 
 officer of the court or other person, and thereupon the trial shall pro- 
 ceed as if no such defect had appeared.' (/) 
 
 The 7 Geo- 4, c. 64, s. 20, (g) professing to have for its object that 
 the punishment of offenders might be less frequently interrupted in 
 consequence of technical niceties, enacted ' that no judgment upon any 
 indictment or information for any felony or misdemeanor, whether 
 after verdict or outlawry, or by confession, default, or otherwise, shall 
 be stayed or reversed,' upon certain grounds, which are all repeated in 
 the 14 & 15 Vict. c. 100, s. 24. Unfortunately, however, that clause 
 did not prevent these defects from being available on demurrer ; but 
 this mischief is now remedied by the section just mentioned, under 
 which these defects are no longer available in any stage of the 
 proceedings, (h) 
 
 (c) The words in italics are new ; the rest dictment to have had jurisdiction. R. v. 
 
 is from the 7 Geo. 4, c. 64, s. 20 (now re- O'Connor, 5 Q. B. 16. See R. v. Albert, 5 
 
 pealed), which, after the words 'perfect Q. B. 37 S. P. R. v. Stowell, 5 Q. B. 44. 
 
 venue,' added ' where the Court shall appear R. v. Hunt, 10 Q. B. 925, indictments re- 
 
 by the indictment or information to have moved by certiorari from the Central Crimi- 
 
 had jurisdiction over the offence ; ' which nal Court. 
 
 were advisedly omitted. It would seem (d) R. v. Holmes, Dears. C. C. 207 ; 22 
 
 that the words ' want of a proper or formal L. J. M. C. 122. 
 
 conclusion,' were introduced to render any (e) See the interpretation clause, sec. 30, 
 
 conclusion perfectly unnecessary and imma- ante, p. 26. 
 
 terial. Where a count for misdemeanor (/) By the common law many formal de- 
 charged, without any statement of venue, fects were amendable (see 1 Chitt. C. L. 297, 
 that certain persons unlawfully and tunml- and the cases there cited), and it has been 
 tuously assembled, and committed certain the long-accustomed practice for the Grand 
 alleged offences, and then added, with a state- Jury to consent, at the time they are sworn, 
 ment of venue, that the defendants did un- that the Court should amend matters of 
 lawfully aid, abet, &c, the said persons to form. This clause, therefore, rather revives 
 continue such unlawful assemblings, and an old than creates a new power. See also 
 other offences, it seems to have been thought R. v. Chappie, 17 Cox, 455. 
 that such count was bad ; because it did not (g) This section is repealed by 36 & 37 
 state a proper venue to the offence alleged to Vict. c. 91. 
 
 have been committd by the first-mentioned (h) The conclusion to a count in an in- 
 
 persons ; but it was held to be cured by the dictment 'against the form of the statute' 
 
 7 Geo. 4, c. 64, s. 20, because it consisted is now no longer necessary. Castro v. R., 6 
 
 only in ' the want of a proper or perfect Ap. Cas. 229. See also R. i>. Mayor of 
 
 venue,' and the Court appeared by the in- Poole, 19 Q. B. D. 602, note at p. 683.
 
 38 General Provisions. [book i. 
 
 The 7 Geo. 4, c. 64, s. 21, enacts, 'that no judgment after ver- 
 dict upon any indictment or information for any felony or misde- 
 meanor shall be stayed or reversed for want of a similiter, nor by 
 reason that the jury process has been awarded to a wrong officer 
 upon an insufficient suggestion, nor for any misnomer or misdescrip- 
 tion of the officer returning such process, or of any of the jurors, nor 
 because any person has served upon the jury who has not been 
 returned as a juror by the sheriff or other officer; and that where 
 the offence charged has been created by any statute, or subjected 
 to a greater degree of punishment, or excluded from the benefit of 
 clergy by any statute, the indictment or information shall after ver- 
 dict be held sufficient to warrant the punishment prescribed by the 
 statute, if it describe the offence in the words of the statute.' (i) 
 
 It was held that an indictment for false pretences must state 
 the property obtained to belong to some person, and that, notwith- 
 standing the preceding section, it was bad if it omitted to do so. (j) But 
 this omission is cured by the 24 & 25 Vict. c. 96, s. 88. The prisoner 
 was tried and convicted upon an indictment which alleged that he 
 was guilty of corrupt practices, against the form, &c. It was proved at 
 the trial that he had promised money to two voters. After verdict, 
 it was objected that the indictment did not sufficiently describe the 
 offence ; it was held by Lord Coleridge, C. J., and Field and Mathew, JJ. 
 (Denman and Day, JJ. dissenting), that the defect (if any) was cured 
 by the verdict ; by four judges, that the indictment was defective and 
 might have been quashed before verdict; and by Field, J., that the 
 indictment was sufficient by reason of 26 & 27 Vict. c. 29, s. 6, and 
 46 & 47 Vict. c. 51, s. 53. (k) 
 
 Pleas in Abatement. 
 
 The 7 Geo. 4, c. 64, s. 19, ' for preventing abuses from dilatory pleas,' 
 enacts that no indictment or information shall be abated by reason 
 of any dilatory plea of misnomer or of want of addition, or of wrong 
 addition of the party offering such plea ; if the court shall be satis- 
 fied by affidavit or otherwise of the truth of such plea ; but in such 
 case the court shall forthwith cause the indictment or information to 
 be amended according to the truth, and shall call upon such party 
 to plead thereto, and shall proceed as if no such dilatory plea had 
 been pleaded. (/) 
 
 Pleas of Autrefois Acquit and Autrefois Convict. 
 
 Where a man is indicted for an offence and acquitted, he cannot be 
 again indicted for the same offence, provided the first indictment 
 
 (i) See R. v. Goldsmith, 12 Cox, C. C. (%) R. v. Stroulger, 17 Q. B. D. 327. 
 
 479, 42 L. J. M. C. 94, post, vol. 2. {D See 14 & 15 Vict. c. 100, s. 24, ante, 
 
 (j) R. v. Norton, 8 C. & P. 196 ; R. ?>. p. 36 ; and see sec. 1 of this Act, noticed 
 
 Martin, 8 A. & E. 481 ; vol. 2, R. v. Bnl- post, as to the power to amend, 
 lock, Dears. C. 0. 653 ; Sill v. R., 1 E. & B. 
 553 ; 22 L. J. M. C. 41.
 
 chap. I.] Pleas of Autrefois Coiivict, Etc. 39 
 
 were such that he could have been lawfully convicted on it. If so 
 indicted a second time, he may plead autrefois acquit. 
 
 So a man may plead autrefois convict if he be indicted for an 
 offence for which he has been previously convicted and sentenced by 
 a proper and lawful judgment. 1 
 
 The indictment charged the prisoners with burglariously breaking 
 and entering the dwelling-house of M. Nevill and A. Nevill, with intent 
 to steal their goods, and they pleaded a plea of autrefois acquit upon a 
 former indictment, which charged them with burglariously breaking 
 and entering the dwelling-house of M. Nevill and A. Nevill, and steal- 
 ing goods of M. Nevill, goods of A. Nevill, and goods of one S. Gibbs. 
 The plea concluded with averring that the burglary was the same iden- 
 tical burglary. To this plea there was a demurrer, which was argued 
 before all the judges of England ; and their opinion was afterwards 
 delivered by Buller, J. The learned judge said, that it had been con- 
 tended on behalf of the prisoners, that as the dwelling-house in which, 
 and the time when, the burglary was charged to have been committed 
 were precisely the same both in the indictment for the burglary and 
 stealing the goods, on which they were acquitted, and in the indictment 
 for the burglary with intent to steal the goods, which was then depend- 
 ing, the offence charged in both was, in contemplation of law, the same 
 offence, and that of course the acquittal on the former indictment was 
 a bar to all further proceedings on the latter. He then proceeded, ' It 
 is quite clear, that at the time the felony was committed, there was 
 only one act done, namely, the breaking of the dwelling-house. But 
 this fact alone will not decide this case, for burglary is of two sorts : 
 first, breaking and entering a dwelling-house in the night time, and 
 stealing goods therein ; secondly, breaking and entering a dwelling- 
 house in the night time, with intent to commit a felony, although the 
 meditated felony be not in fact committed. The circumstance of 
 creaking and entering the house is common and essential to both the 
 species of this offence ; but it does not of itself constitute the crime 
 in either of them ; for it is necessary to the completion of burglary 
 that there should not only be a breaking and entering, but the break- 
 ing and entering must be accompanied with a felony actually com- 
 mitted, or intended to be committed ; and these two offences are so 
 distinct in their nature, that evidence of one of them will not sup- 
 port an indictment for the other. (??i) In the present case, therefore, 
 
 (m) It is well established that an indict- here given, states the point too largely ; as 
 
 ment for breaking and entering, &c., and it seems to go to the extent of saying that 
 
 stealing goods, will not be supported by evidence of a breaking and entering, and a 
 
 evidence of a breaking and entering, &c, felony actually committed, will not support 
 
 with intent to steal them. But it has been an indictment for a breaking and entering, 
 
 supposed that an indictment for breaking &c, and a felony intended to be committed, 
 
 and entering, &c, with intent to steal, In 2 East, P. C. c. 15, s. 29, p. 520, the 
 
 would be supported by evidence of breaking learned author observes upon this case, and 
 
 and entering, &c, and an actual stealing says, ' Qucere, whether the definition of the 
 
 (vol. ii. Burglary). If this be so, the report crime be not solely resolvable into the break- 
 
 of the judgment delivered by Buller, J., as ing, &c, with an intent to commit felony; 
 
 Amef.ican Note. 
 
 1 By the Constitution of the United States States, is generally accepted by them. In 
 
 "no person shall be subject for the same South Carolina, however, a person is only 
 
 offence to be twice put in jeopardy of life or protected where he has been acquitted by a 
 
 limb." This, although not binding upon the jury. See Bishop, Vol. i. ss. 981, 982.
 
 40 General Provisions. [book i. 
 
 evidence of the breaking and entering with intent to steal, was 
 rightly held not to be sufficient to support the indictment charging 
 the prisoner with having broken and entered the house, and stolen 
 the goods stated in the first indictment ; and if crimes are so distinct, 
 that evidence of the one will nut support the other, it is as incon- 
 sistent with reason as it is repugnant to the rules of law, to say that 
 they are so far the same that an acquittal of the one shall be a bar to 
 prosecution for the other.' 
 
 The learned judge then observed upon the cases which had been 
 cited on behalf of the prisoners, in support of the proposition con- 
 tended for by their counsel ; namely, Turner's case (n) and the case of 
 Jones, (o) In Turner's case it was agreed that the prisoner, hav- 
 ing been formerly indicted for burglary, in breaking the house of a 
 Mr. Tryon, and stealing his goods, and acquitted, could not be indicted 
 again for the same burglary, in breaking his house, and stealing 
 therein the money of one Hill (a servant of Mr. Tryon), but that he 
 might be indicted for felony in stealing the money of Hill. Upon 
 this case Buller, J., observed: 'The decision was not a solemn judg- 
 ment, for the prisoner was not indicted a second time for the burg- 
 lary: it was merely a direction from the judges to the officer of the 
 Court how to draw the second indictment for the larceny ; and it pro- 
 ceeded upon a mistake, as I shall presently show. If the judges in 
 that case exercised a little lenity before the indictment, which might 
 more properly have been done after conviction, much censure could 
 not fall on them. But they proceeded on the ground that Turner 
 having been indicted for burglary in breaking the house of Mr. Tryon, 
 and stealing his goods, and acquitted thereof, could not be again in- 
 dicted for the same burglary for breaking the house, though he might 
 be indicted for stealing the money of Hill, for which he had not been 
 indicted before ; and he was indicted accordingly. The judges, there- 
 fore, must have conceived that the breaking the house and the stealing 
 the goods were two distinct offences ; and that breaking the house only 
 constituted the crime of burglary ; which is a manifest mistake, for 
 the burglary consisted in breaking the house and stealing the goods; 
 and if stealing the goods of Hill was a distinct felony from that of 
 stealing the goods of Tryon, which it was admitted to be, the burg- 
 laries could not be the same.' 
 
 With respect to the case of Jones and Bever, the learned judge said, 
 that it proceeded entirely upon the decision in Turner's case : and 
 that, the foundation failing, the superstructure could not stand, (p) 
 
 The learned judge then referred to several authorities, (q) and 
 
 of which the actual commission is such a bury, and stealing his goods therein ; and, 
 strong presumptive evidence that the law being acquitted, were afterwards indicted 
 has adopted it, and admits it to be equiva- for the same burglary, in breaking and enter- 
 lent to a charge of the intent in an indict- ing Lord Cornbury's bouse, and stealing the 
 ment. And therefore an indictment char- goods of a Mr. Nunnesy ; and it was agreed 
 ging the breaking, &c, to be with intent to that, as they had been before acquitted, they 
 steal, is said to be supported by proof of could not be indicted again for the same 
 actual stealing ; though certainly not vice burglary, but that they might be indicted 
 versa.' for the felony in stealing the goods of Mr. 
 
 (a) Kel. 30. Nunnesy, precisely as had before been done 
 
 (o) Kel. 52. in Turner's case. 
 
 (p) R. v. Jones, Kel. 52. The prisoners (q) 2 Hawk. P. C. c. 35, s. 3. Fost. 
 
 were indicted for burglariously breaking and 361, 362. R. v. Pedley, 1 Leach, 242. 
 entering the dwelling-house of Lord Corn-
 
 chap. I.] Picas of Autrefois Convict. Etc. 41 
 
 continued, ' These cases establish the principle, that unless the 
 first indictment were such as the prisoner might have been con- 
 victed upon it by proof of the facts contained in the second indictment, 
 an acquittal on the first indictment can be no bar to the second. 
 Now, to apply the principle to the present case: the first indictment 
 was for burglariously breaking and entering the house of Miss Nevill, 
 and stealing the goods mentioned ; but it appeared that the prisoners 
 broke and entered the house with intent to steal, for, in fact, no lar- 
 ceny was committed, and therefore they could not be convicted' on 
 that indictment. But they have not been tried for burglariously 
 breaking and entering the house of the Miss Nevills with intent to 
 steal ; which is the charge in the present indictment, and therefore 
 their lives have never been in jeopardy for this offence. For this 
 reason, the judges are all of opinion that the plea is bad ; that there 
 must be judgment for the prosecutor upon the demurrer ; and that 
 the prisoners must take their trials on the present indictment.' And 
 the prisoners were accordingly tried and convicted, (r) 
 
 In the preceding case the property in the goods was laid differently 
 in the two indictments. The first, upon which the prisoners had been 
 acquitted, stated some of the goods stolen to belong to M. Nevill, 
 others to A. Nevill, and others to S. Gibbs ; and the second indictment 
 stated the goods intended to be stolen to belong to M. and A. Nevill 
 only. And it is said that Buller, J., in delivering the opinion of the 
 judges on the case, observed that the property in the goods was dif- 
 ferently described in the two indictments, and said that this might 
 afford another objection to the plea ; but that he had not entered into 
 the consideration of the circumstance, as the case did not require 
 it. (s) The ancient doctrine, that a person indicted and acquitted for 
 breaking and entering a dwelling-house in the night, and there stealing 
 the goods of one person, could not be afterwards indicted for the same 
 breaking and entering, and stealing the goods of another person, 
 appears to have been overruled in this case, when the authorities 
 by which it was supposed to have been established were denied to 
 be law. (t) It may be mentioned, also, that the 7 & 8 Geo. 4, c. 28, 
 s. 4, enacts that ' no plea setting forth any attainder shall be pleaded 
 in bar of any indictment, unless the attainder be for the same offence 
 as that charged in the indictment.' 
 
 In a later case, the doctrine was recognized that a plea of autrefois 
 acquit is no bar, unless the facts charged in the second indictment 
 would have warranted a conviction upon the first. To an indictment 
 for keeping a gaming-house in the time of Geo. 4, the defendant 
 pleaded that at a sessions, in 4 Geo. 4, he was indicted, for that he, on 
 the 18th of January, 57 Geo. 3, and on divers other days between that 
 day and the taking of that inquisition, kept a gaming-house, against 
 the peace of our said lord the king ; that he was tried and acquitted, 
 and that the offence in both indictments was the same. To this 
 there was a demurrer, and it was urged that the contra pacem in the 
 first indictment tied up the prosecutor to the proof of an offence in 
 
 (r) R. v. Vandercomb, 2 Leach, 708 ; 2 (() Viz., Turner's case, and Jones's case, 
 
 East, P. C. c. 15, s. 29, p. 519. ante, p. 40. 
 
 {s) 2 East, P. C. c. 15, s. 29, p. 519, 
 note (b).
 
 42 General Provisions. [book i. 
 
 the time of George 3 ; for George 3 being the only king named in 
 that indictment, ' our said lord the king,' in that indictment, must 
 have referred to him, and then the defendant could not have been 
 punished on that indictment for keeping the house in the time of 
 King George the 4th. And the demurrer was held good, (u) 
 
 It seems that an acquittal of an offence charged as a larceny can- 
 not be pleaded in bar to an indictment for the same offence charged 
 as a false pretence, for the defendant was not in jeopardy for the 
 misdemeanor on the trial for the larceny, and the acquittal of the 
 larceny may have proceeded on the ground that the offence did not 
 amount to a felony, (v) 
 
 Where a man has been acquitted generally upon an indictment 
 for murder, autrefois acquit is a good plea to an indictment for 
 the manslaughter of the same person ; and e converso where a man 
 has been acquitted on an indictment for manslaughter, he shall 
 not be indicted for the same death as murder ; the fact being 
 the same, and the difference only in the degree, (w) And upon 
 similar grounds it should seem, that one who had been convicted 
 upon an indictment for manslaughter, and had his clergy allowed, 
 might have pleaded autrefois convict to an indictment, charging the 
 same death upon him as a murder, (x) And it is clear that autrefois 
 convict of manslaughter, and clergy thereupon allowed, was a good 
 bar in an appeal of murder, (y) An autrefois acquit, or autrefois 
 attaint, upon an indictment for murder, was a good plea to an 
 indictment charging the same death as petit treason, (z) 
 
 As a final determination in a Court having competent jurisdiction 
 is conclusive in all Courts of concurrent jurisdiction, it has been held 
 that a party who has killed another in a foreign county, and been 
 there prosecuted, tried, and acquitted, may avail himself of such 
 acquittal in answer to any charge against him in this country for 
 the same offence, (a) 
 
 In a case where the prisoner had been tried for murder, and con- 
 victed of manslaughter, and had received the benefit of clergy, and was 
 
 (u) R. v. Taylor, 3 B. & C. 502. inquisition. Denman, J., held that the 
 
 (v) R. v. Henderson, 2 M. C. C. R. 192. depositions clearly only disclosed evidence 
 
 C. & M. 328. It will be noticed that the of manslaughter, and so held the plea proved. 
 
 24 & 25 Vict. c. 96, s. 88, only prevents an (y) R. v. Wigges, 4 Co. 45. 
 
 acquittal on an indictment for false pre- (z) 2 Hale, 246, 252 ; Fost. 329. As to 
 
 tences if the offence turns out to be larceny, the general doctrine of these pleas, and that 
 
 See also 14 & 15 Vict. c. 100, s. 12. they can only avail where the first indict- 
 
 (w) R. v. Holcroft, 4 Co., 46 b, 2 ; Hale, ment was valid, see 1 Chit. Crim. L. 452, 
 
 246. et seq. And R. v. Clarke, 1 B. & B. 473. 
 
 (x) The only objection would be, that he (a) R. v. Hutchinson, 3 Kebl. 785, cited 
 
 could not have been convicted of murder in Beak v. Thyrwhit, 1 Show. 6 ; Bull, 
 
 upon the former indictment ; and though N. P. 245 ; 3 Mod. 194 ; 1 Leach, 135, note 
 
 this might be said equally where the party (a). The defendant, being apprehended in 
 
 has been acquitted upon a former indict- England, and committed to Newgate, was 
 
 ment for manslaughter, the plea in the latter brought into K. B. by habeas corpus, where 
 
 case is clearly proper, upon the ground that he produced an exemplification of the record 
 
 if the party was not guilty even of man- of his acquittal in Portugal : but the King 
 
 slaughter, he cannot be charged with having (Car. 2), being willing to have him tried 
 
 caused the death with the circumstances of here for the same offence, referred the point 
 
 aggravation necessary to constitute murder, to the consideration of the Judges ; who all 
 
 The point arose in R. v. Tancock, 13 Cox, agreed that, as the party had been already 
 
 C. C. 217, where the prisoner, having been acquitted of the charge by the law of Por- 
 
 convicted of manslaughter, pleaded autrefois tugal, he could not be tried for it again in 
 
 convict, to a charge of murder on the coroner's England.
 
 chap. I.] Pleas of Autrefois Convict, Etc. 43 
 
 subsequently tried for murder, and convicted of manslaughter in kill- 
 ing another individual (who died after the first trial) by the same act 
 which caused the death of the first ; the judges were unanimously of 
 opinion, that the former allowance of clergy protected the prisoner 
 against any punishment upon the second verdict; and that if the 
 prisoner were to be called up for judgment, he might rely upon such 
 allowance as a bar. (b) 
 
 If a prisoner could have been legally convicted upon an indict- 
 ment upon any evidence that might have been adduced, his ac- 
 quittal on that indictment may be successfully pleaded to a second 
 indictment, and it is immaterial whether the proper evidence was 
 adduced at the first trial or not. A plea of autrefois acquit must only 
 set forth the record of one acquittal ; if it were to set forth two, it 
 would be bad, for duplicity, but it seems that the Court would take 
 care that the prisoner should not be prejudiced by pleading one 
 acquittal instead of the other. To an indictment for the murder of a 
 child, described in different counts as Charles William, William, &c, 
 the prisoner pleaded that at a former delivery of the gaol of Newgate 
 he had been indicted, tried, and acquitted of the murder of Charles 
 William Beadle, and the plea averred that the child was as well 
 known by the name of Charles William Beadle as by any of the 
 several names and descriptions of Charles William, &c, as he was in 
 and by the present indictment described : and this averment was 
 traversed by the replication. The prisoner's counsel asked if they 
 might add to this plea, that the prisoner was acquitted on the cor- 
 oner's inquisition, in which the deceased was described as Charles 
 William Sheen. Burrough, J., ' If the prisoner, by his plea, insists 
 on two records, his plea would be double, (c) but if in the course of 
 the case it shall appear that he ought to have pleaded his acquittal 
 on the inquisition, I will take care that he shall not be prejudiced.' 
 For the prisoner a register was put in, in which the baptism of the 
 deceased, who was about four months old, was entered ' Charles 
 William, the son of Lydia Beadle;' a witness proved the identity of 
 the child, and that his mother was an unmarried woman, named 
 Lydia Beadle, whom the prisoner had married after the birth of the 
 deceased, and stated that the deceased was always called William or 
 Billy, but that she should have known him by the name of Charles 
 William Beadle; and if any one had inquired for him by that name 
 she would have known who was meant. The prisoner's father stated 
 that the child's name was Charles William Sheen, but that he had 
 
 (b) R. v. Jennings, East. T. 1819. R. & or her committed, before the time of such 
 
 R. 388. The act which occasioned the death allowance. 
 
 of the two individuals (two children) was (c) But see Ashford v. Thornton, 1 B. & 
 one and the same. The general effect of the Aid. 423, where a plea by the defendant con- 
 allowance of clergy, after the 8 Eliz. c. 4, tained an averment of an acquittal both on 
 was to discharge all offences precedent within an indictment for murder and on an indict- 
 clergy ; but not such as were not entitled to ment for a rape, as well as an allegation of 
 the benefit of clergy. But by the 6 Geo. 4, an alibi, and divers other facts tending to 
 c. 25, s. 4, the allowance of the benefit of prove the defendant's innocence. See also 
 clergy to any person who was convicted of 2 Hawk. P. C. c. 23, s. 128, where it is said 
 any felony, did not render the person that there seems to be no doubt that a pris- 
 to whom such benefit was allowed dis- oner may plead as many pleas as he like, 
 punishable for any other felony, by him unless they be repugnant to each other; and 
 
 see ibid. s'. 137, and c. 34. C. S. G.
 
 44 General Provisions. [book i. 
 
 never heard him called so. Burrough, J., (in summing up) ' The 
 question on this issue is, whether the deceased was as well known by 
 the name of Charles William Beadle as by any of the names and 
 descriptions in the present indictment; and I ought to say that if the 
 prisoner could have been convicted on the former indictment, he must 
 be acquitted now. And whether at the former trial the proper evi- 
 dence was adduced before the jury or not, is immaterial; for if by 
 any possible evidence that could have been produced, he could have 
 been convicted on that indictment, he is now entitled to be acquitted. 
 The first evidence we have is the register ; and, looking at that, would 
 not every one have called the child Charles William Beadle ? And it 
 is proved by one of the witnesses that she should have known him by 
 that name. It cannot be necessary that all the world should know 
 the child by that name ; because children of so tender an age are 
 hardly known at all, and are generally called by a Christian name 
 only. If, however, you should think that the name of the deceased 
 was Charles William Sheen, I wish you would inform me of it by your 
 verdict, because it is agreed, that as that is the name in the coroner's 
 inquisition, the prisoner should derive the same advantage from the 
 course he has taken, as if he had pleaded his acquittal on that inquisi- 
 tion. My Brother Littledale suggests to me, that if a legacy had been 
 left to this child by the name of Charles William Beadle, he would 
 have taken it upon this evidence ; and if this evidence of the child's 
 name had been given at the former trial, I think the prisoner should 
 have been convicted. The case of R. v. Clark (d) has been cited, 
 but in that case there was an entire absence of evidence as to the sur- 
 name of the deceased. If you think that in the present case the name 
 of the deceased was either Charles William Beadle or Charles William 
 Sheen, or if you think that he was known at all by these names, you 
 ought to find a verdict for the prisoner.' (e) 
 
 If the means of death charged in two indictments be such as would 
 be supported by the same evidence, a plea to the one that the prisoner 
 was acquitted on the other is good. Therefore, to an indictment for 
 murder, by giving the deceased oil of vitriol, and forcing him to take 
 it into his mouth and throat, it is a good plea that the prisoner had 
 been acquitted on an indictment for giving the deceased poison, that is, 
 oil of vitriol, and forcing him to take, drink, and swallow it down. (/) 
 
 An acquittal for murder by poison cannot be pleaded in bar to an 
 indictment for feloniously administering poison with intent to mur- 
 der; for, although the 14 & 15 Vict. c. 100, s. 9, empowers the jury 
 to convict of an attempt to commit a murder on the trial of an indict- 
 ment for murder, that would only be a misdemeanor, and a totally 
 different offence from the statutory felony of administering poison 
 with intent to murder, (g) 
 
 (d) R. & R. 358, post. ing been sworn, the counsel for the prisoner 
 
 (e) R. v. Sheen, 2 C. & P. 634, Bur- opened his ease in support of the plea, and 
 rough and Littledale, JJ. In this case the called his witnesses ; the counsel for the 
 counsel for the Crown replied ore terms, read- Crown afterwards addressed the jury and 
 ing the replication from the back of his called witnesses, and the counsel for the 
 brief, and the prisoner's counsel joined issue prisoner replied. 
 
 ore tenus; the court awarded a venire re- (/) R. v. Clarke, 1 B. & B. 473. 
 
 turnable instanter, and the sheriff having (g ) R. v. Connell, 6 Cox, C. C. 178. 
 
 made his return forthwith, and the jury hav-
 
 chap, i.] Pleas of Autrefois Convict, Etc. 45 
 
 An acquittal on a coroner's inquisition for murder of an infant, is a 
 bar to an indictment for concealing the birth of the same child, (h) 
 
 Formerly by the 7 Will. 4 & 1 Vict. c. 85, s. 11, on the trial of any 
 person, for any felony whatever, where the crime charged included an 
 assault against the person, it was lawful for the jury to acquit of the 
 felony and to find a verdict of assault against the person indicted ; 
 but that section is repealed by the 14 & 15 Vict. c. 100, s. 10, so that 
 now, on an indictment for the assault, the acquittal on the previous 
 charge of felony could not be pleaded, (i) 
 
 A previous summary conviction for assault before Justices under 
 the 24 & 25 Vict. c. 100, s. 42 (j) is not a bar to a subsequent indict- 
 ment for manslaughter upon the death of the man assaulted conse- 
 quent upon the same assault (k) ; notwithstanding the provisions of 
 the Summary Jurisdiction Act, 1879, 42 & 43 Vict. c. 49, s. 27 (3); (7) 
 but a person who has been summarily convicted for an assault, but 
 has been discharged on giving security for his future good behaviour, 
 cannot afterwards be convicted on indictment for the same assault, (m) 
 
 On an indictment for stealing two pair of boots, the property of Row- 
 land B., who was the son of John B., to whom the boots really belonged, 
 the mistake in the ownership was discovered, and an acquittal taken, 
 and a fresh bill describing the boots as the property of John B. having 
 been found, the prisoner pleaded autrefois acquit to it ; and on the trial 
 of this plea Rowland B. proved that the boots were the property of his 
 father, and that he had worked in the shop till one o'clock, when he 
 succeeded his father in charge of the stall, from whence the boots were 
 stolen while he was in charge, his father returning home ; he was 
 fourteen years old, and lived with and worked for his father, who- 
 supported him, but paid him no wages ; it was contended that Row- 
 land B. was a bailee of the goods, and therefore they were properly 
 described as his property in the first indictment. Secondly. That the 
 indictment might have been amended under the 14 & 15 Vict. c. 100, 
 s. 1, and therefore the prisoner might have been convicted on the first 
 indictment. But these points were overruled, and the jury found 
 that the goods were the property of John B., and the same as those 
 
 (h) R. v. Ryland, Glouc. Sum. Ass. intentionally killed Robertson. The plea, 
 
 1845, Atcherley, Serjeant, after consulting therefore, of autrefois acquit was in that case 
 
 Tindal, C. J. MSS. C. S. G. properly overruled : Martin, B. « I agree 
 
 (i) R. v. Dingley, 4 F. & F. 99. that R. v. De Salvi is not in point. The 
 
 (j) See this sect, post, Common Assaults, prisoner there had been acquitted of an as- 
 Book 3, ch. 10, s. 1. sault with intent to murder, but convicted 
 
 (k) R. v. Morris, 36 L. J. M. C. 84 ; of an assault with intent to do grievous 
 L. R. 1 C. C. R. 90, ct per Kelly, C. B., diss. bodily harm, and was afterwards indicted for 
 De Salvi's case [reported among the cases murder upon the death of the person as- 
 tried at the Central Criminal Court, sess. saulted, and it was there held by the Lord 
 1857, vol. 46, p. 884] is clearly distinguish- Chief Baron Pollock that murder might be 
 able. There the prisoner was indicted for committed without any intent to kill, and 
 the murder of one Robertson, and pleaded a that if a man intended to maim and caused 
 plea of autrefois acquit, the acquittal having death, and it could be made out most dis- 
 been upon an indictment for wounding, with tinctly that he did not mean to kill, yet if he- 
 intent to kill. It was clear that this ac- did those acts for the purpose of aceom- 
 quittal might have been pronounced upon plishing that limited object, and they were 
 the ground of the jury having negatived the calculated to produce death, and death en- 
 intent to kill, and yet that the prisoner sued, that was murder, although the mark 
 might well be guilty of the murder, without did not intend to kill.' 
 an intent to kill the individual murdered, (/) R. v. Friel, 17 Cox, C. C. 325. 
 as if he had shot at another man, but un- (m) R. v. Miles, 24 Q. B. D. 423.
 
 46 General Provisiotis. [book i. 
 
 described in the first indictment as the property of Rowland B. ; and 
 upon a case reserved, it was held that the son was not a bailee, but a 
 servant, and that the goods remained all the time in the father's pos- 
 session ; and that the first indictment must be considered in the state 
 in which it was, and not in that in which it might have been, and 
 consequently the prisoner had been acquitted upon an indictment, 
 upon which she never was in peril of a conviction, (n) 
 
 To an indictment against one prisoner only for receiving stolen 
 woods a plea of autrefois acquit, upon an indictment against him 
 and four others, on which one was convicted and the three others 
 and himself acquitted, is good upon demurrer. To an indictment 
 against Dann for receiving stolen goods, he pleaded that at a pre- 
 vious assizes, an indictment was found against two persons for 
 stealing the said goods, and against Whitehead, Dann, and two others, 
 for receiving the said goods, and that the two principals and 
 Whitehead were found guilty, but Dann and the other receivers 
 acquitted ; to this plea there was a demurrer, and after considera- 
 tion the following judgment, which had been prepared by Gaselee, J., 
 was delivered at the next assizes, (o) ' The plea of autrefois 
 acquit is grounded upon an ancient maxim of the common law of 
 England, that no one ought to be brought into jeopardy of his life 
 twice for the same offence. A great deal of learning is to be found 
 upon the subject in 2 Hawk. P. 0. c. 35, and Starhie on Criminal 
 Pleading, p. 316, and many other books. Upon the result of all the 
 authorities the question is, whether the prisoner could have been con- 
 victed on the former indictment, for, if he could, he must be acquitted 
 on the second ; and the law is very correctly stated to the jury by 
 Burrough, J., in the case of R. v. Sheen, (p) It is argued for the 
 prosecution, that an acquittal of a joint felony is not a bar to an in- 
 dictment for a several felony. However that might be, if it clearly 
 appeared upon the record that several felonies had been committed, 
 in some of which the prisoner Dann had been jointly, and in another 
 separately concerned, it does not appear that the present indictment 
 is confined to any offence committed by the prisoner separately, nor is 
 it so. Upon it he is liable to be convicted of an offence committed, 
 separately or jointly with any other person, and consequently with 
 Whitehead. The plea alleges that the charge in the former indict- 
 ment against Whitehead and the prisoner and the other three, is the 
 same offence as that charged in the former indictment, and this is 
 admitted by the demurrer. The argument that the prisoner could 
 not be convicted upon the former indictment is not true. The result 
 of that indictment shows that it was not necessary to convict all the 
 parties charged by that indictment. The prisoner might have been 
 convicted either with Whitehead, or without him ; nay, if the judge 
 had called upon the prosecutor to elect against whom he would pro- 
 ceed (whether he did so or not the learned judge was not at liberty to 
 consider, as nothing respecting it appears upon record), and he had 
 elected to proceed against the prisoner, he might have been convicted 
 
 (n) R. v. Green, D. & B. 113. had been given, and the case might come 
 
 (o) The case was postponed in order to before some of them upon error. 
 
 consult the other judges, but they declined fc (p) See note (e) p. 44. 
 
 giving any opinion on it, as no judgment
 
 chap. I.] Pleas of Autrefois Convict, Etc. 47 
 
 alone, which shows he had been in jeopardy ; and if the plea of autrefois 
 acquit is not a bar, he may now be convicted of the very offence com- 
 mitted jointly with Whitehead, and of which Whitehead has been 
 convicted. A replication that the charges were not the same might 
 possibly, upon evidence, have placed the case in a very different point 
 of view. As the record now stands, the learned judge is bound to 
 adjudge the plea to be good, and that the prisoner be discharged.' (q) 
 
 The prisoner was charged with a larceny at common law, and also 
 with receiving ' the goods aforesaid.' He was acquitted on the ground 
 that the goods were a fixture, and therefore incapable of being stolen 
 at common law. He was then indicted under 24 & 25 Vict. c. 96, 
 s. 31, for stealing the fixture, and also with receiving the same. He 
 pleaded autrefois acquit, but it was held that the plea was bad, since 
 the prisoner was never in jeopardy on the first indictment either for 
 stealing or receiving, (r) 
 
 So an acquittal upon an indictment under 24 & 25 Vict. c. 97, s. 35, 
 and 24 & 25 Vict. 7, c. 100 s. 32, charging the prisoners with the felony 
 of obstructing a railway with intent to endanger the safety of the pas- 
 sengers, was held to be no bar to a subsequent indictment under 
 s^ 36 and 34, of the same statutes respectively, preferred on the same 
 facts, charging them with the misdemeanor of endangering the safety 
 of passengers by an unlawful act, since they could not be convicted 
 of this misdemeanor on the first indictment, (s) 
 
 Where a defendant had been acquitted upon an indictment for 
 perjury, alleged to have been committed in an affidavit, the jurat 
 of which was not set out, and he was again indicted for perjury com- 
 mitted in the same affidavit, and the jurat set out, it was held that 
 a plea of the former acquittal was good ; for in the first indictment 
 the offence was sufficiently charged without setting out the jurat, (t) 
 
 Where an insolvent debtor had been acquitted upon an indictment 
 for omitting certain goods out of his schedule, and was again indicted 
 for omitting those goods and some others out of his schedule ; it was 
 held that a plea of autrefois acquit was not, in strictness, a good 
 defence to the whole of the second indictment : the prisoner might 
 have fraudulently omitted out of his schedule the goods mentioned 
 in the last indictment, which were not mentioned in the first, and 
 in point of law a prosecutor might prefer separate indictments for 
 each such omission ; but excepting under very particular circum- 
 stances such a course ought not to be pursued, (u) 
 
 Where a prisoner was indicted for a simple burglary in the house 
 of a person, for whose murder he had been acquitted, Parke, B., said, 
 ' The charge in the indictment does not affect the life of the prisoner, 
 as there is no allegation that the burglary was accompanied by vio- 
 lence. If he had been indicted for burglary with violence, as he 
 might have been convicted of manslaughter, or even assault, on the 
 indictment for murder, on which he was acquitted altogether, in my 
 opinion that acquittal would have been an answer to the allegation of 
 violence, if it had been inserted in the present indictment.' (v) 
 
 (q) R. v. Dann, R. & M. C. C. R. 424. (u) R. v. Champneys, 2 M. & Rob. 2C ; 
 
 See R v. Barnett, vol. ii. 2 Lew. 52, Patteson, J. 
 
 (r) R. j'. O'Brien, 15 Cox, C. C. 29. (v) R. v. Gould, 9 C. & P. 364, Tindal, 
 
 {s) R. v. Gilmore, 15 Cox, C. C. 85. C. J., and Parke, B. 
 
 (t) R. v. Emden, 9 East, 437. See this 
 ease, post, tit. Perjury.
 
 48 General Provisions. [book i. 
 
 The acquittal on an indictment charging the prisoner as a principal, 
 was no defence to an indictment charging him as accessory before the 
 fact. Plant was indicted and tried for the murder of her child, and 
 Birchenough for having been present, aiding and abetting her in the 
 said murder. She was found guilty, he was acquitted. They were 
 arraigned on a second indictment, in which she was charged with the 
 murder, he as an accessory before the fact; he pleaded autrefois acquit, 
 referring to his acquittal on the former indictment. The prosecutor 
 demurred ; Lord Denman, C. J., thought the plea bad, and directed the 
 prisoner to plead to the indictment, which he did, and was found 
 guilty ; and upon a case reserved, the judges were of opinion that the 
 plea of autrefois acquit was properly overruled, (w) 
 
 Where several chattels are stolen at the same time, and a prisoner 
 has been acquitted of stealing one of them, this acquittal is no bar to 
 indictment for stealing another of them ; for ' it hath happened that 
 a man acquitted for stealing the horse hath yet been arraigned and 
 convicted for stealing the saddle, though both were done at the same 
 time.' (x) Where a prisoner was acquitted of uttering a forged note, it 
 was held that he might be afterwards tried for uttering another forged 
 note at the same time when he had uttered the former one. (y) So 
 where the prisoner had been convicted of stealing one pig, it was held 
 that he might be tried for stealing another pig at the same time and 
 place, (z) 
 
 Wherever the indictment whereon a man is acquitted is so far 
 erroneous (either for want of substance in setting out the crime, or 
 the authority in the Court before which it was taken, as where ses- 
 sions were held on a day, to which they had not been adjourned), (a) 
 that no good judgment could have been given upon it against the 
 prisoner, the acquittal is no bar to a subsequent indictment, because 
 in judgment of law the prisoner was never in danger upon it : for the 
 law will presume, prima facie, that the judge would not have given a 
 judgment, which would have been liable to be reversed, (b) But if 
 there be no error in the indictment, but only in the process, it seems 
 agreed that the acquittal will be a good bar to a subsequent prosecu- 
 
 (iv) R. v. Birchenough, R. & M. C. C. R. in R. v. Bond, 1 Den. C. C. 517, 'I do not 
 
 477 ; 7 C. & P. 575. This case overruled think it necessary, in a plea of autrefois con- 
 
 1 Hale, 626 ; 2 Hale, 224 ; Foster, 361 ; 2 vict, to allege the identity of the' specific 
 
 Hawk. P. C. c. 35. s. 11 ; Kely. 25. It was chattel charged to he taken. Suppose the 
 
 decided before the passing of 24 & 25 Vict, first charge to be taking a coat ; the second 
 
 c. 94, s. 1, noticed post. to be taking a pocket-book ; autrefois con- 
 
 (x) 1 Hale, 246. vict pleaded ; parol evidence showing that 
 
 (?/) Anon., Wood, B., cited C. & M. 611. the pocket-book was in the pocket of the 
 
 (z) R. v. Brettel, MSS. C. S. G., C. & M. coat ; I think that would support the plea ; 
 
 609, Cresswell, J.: but, as the prisoner was beeause it would show a previous conviction 
 
 undergoing his sentence for the stealing of the for the same act of taking.' 1 
 
 other pig, Cresswell, J., thought the second (a) R. v. Bowman, 6 C. & P. 337. 
 
 indictment should be abandoned, and that (b) 2 Hawk. P. C. c. 35, s. 8. R. v. 
 
 course was adopted. These authorities show Turner, R. & M. C. C. 239. Vaux's case, 4 
 
 that Erie, J., fell into an error when he said, Ren. 44. 
 
 American Note. 
 
 1 In America, if the two pigs had differ- were stolen at one time though belonging to 
 
 ent owners, a man might be convicted of a different owners, the charge would be one 
 
 larceny with respect to each pig ; but not so and indivisible. (See Bishop, vol. i. ss. 1061, 
 
 if they belonged to the same owner. Indeed 1062, 1063, 1064, and the cases cited by 
 
 it should seem that if the articles stolen him.)
 
 CHAP. 
 
 i-] 
 
 Pleas of Autrefois Convict, Etc. 
 
 49 
 
 tion, the best reason whereof seems to be, that such error is salved by 
 appearance, (c) And if one upon an insufficient indictment for felony- 
 has judgment this judgment is a bar to a new indictment unless it be 
 reversed on error, (d) If also a man be convicted either by verdict or 
 by confession on an insufficient indictment, and no judgment given 
 thereon, he may be again indicted, (e) 
 
 Where two indictments for rape were precisely in the same words, 
 and there had been an acquittal upon one, and that acquittal was 
 pleaded to the second ; the first indictment was put in, and it was 
 contended, on behalf of the prisoners, that it was evidence that the 
 offence charged in the second was the same as that charged in the 
 first ; but it was answered, on the part of the Crown, that it was no 
 evidence at all, for if the same prisoners had committed several rapes 
 on the same woman on the same day (which was the fact here) each 
 indictment would be in the same terms. So if a man stole twenty 
 sheep from the same person at different times on the same day, or 
 wounded the same person several times on the same day, each indict- 
 ment would be in the same words ; and of this opinion was the 
 learned judge, (f) and this opinion has been since confirmed, (g) In 
 the same case the commitment of the prisoners for a rape upon the 
 prosecutrix was tendered in evidence on the part of the prisoners, 
 and objected to on the ground that it had no bearing on the issue, 
 as a commitment might be for one crime, and any number of indict- 
 ments might afterwards be preferred for different crimes, and the 
 learned judge was strongly of opinion that it was not admissible, (h) 
 
 (c) 2 Hawk. P. C. ibid. 
 
 (d) Vaux's case, 4 Rep. 44 ; 2 Hale, P. C. 
 248 ; and see R. v. Haughton, 1 E. & B. 
 501. 
 
 (e) Ibid. 
 
 {/) R. v. Parry, 7 C. & P. 836, 2 Moo. 
 C. C. R. 9. S. C. Bolland, B. But he left 
 the case to the jury, reserving the point, 
 which, however, was not decided by the 
 judges ; see R. v. Martin, 8 Ad. & Ell. 483. 
 
 (g) Per Lord Deninan, C. J., R. v. Mar- 
 tin, 8 Ad. & Ell. 482. 
 
 (h) R. v. Parry, supra, note (/). The 
 commitment was, however, received subject 
 to the opinion of the judges. The jury 
 found that the offences were the same, not- 
 withstanding the learned judge told them 
 that he thought there was no evidence to 
 show that they were so ; and upon a case 
 reserved, the judges held that they could 
 not direct the verdict to be set aside, but 
 they did not decide any other point. A 
 plea of autrefois acquit may be pleaded ore 
 tenus, R. v. Bowman, 6 C. & P. 337 ; R. v. 
 Champneys, ante, p. 47 ; R. v. Coogan, 1 
 Leach, 448 ; which means that the prisoner 
 may state the plea, but he must do so in the 
 proper form, the difference being that it may 
 either be put upon parchment by the pris- 
 oner, or he may dictate it ore tenus, and it 
 may be taken down by the clerk of arraigns, 
 and put upon parchment by him. Per 
 Patteson, J., K. v. Bowman, supra. The 
 Court will not reject an informal plea of 
 autrefois acquit, pleaded by a prisoner, but 
 
 vol. i. — 4 
 
 will assign counsel to put it into a formal 
 shape, 2 Hale, 241., and postpone the trial 
 to give time for its preparation, R. v. 
 Chamberlain, 6 C. & P. 93, and if the rec- 
 ord of the previous acquittal is not made up, 
 the Court will postpone the trial to enable 
 the prisoner to apply for a mandamus to 
 make up the record, R. v. Bowman, 6 C. 
 & P. 101 ; which mandamus the Queen's 
 Bench will grant, although it be the record 
 of a sessions improperly held ; for the pris- 
 oner has a right to have the record of the 
 proceedings correctly made up to make what 
 use of it he can. R. v. Justices of Middle- 
 sex, 5 B. & Ad. 1113. The prisoner is not 
 entitled as of right to a copy of the indict- 
 ment, in order to draw up his plea, but the 
 Court will older the indictment to be read 
 over slowly in order that it may be taken 
 down, R. v. Parry, supra : but the counsel 
 for the Crown may give a copy of the indict- 
 ment to save time, ibid. If a prisoner has 
 pleaded ' not guilty ' to two indictments, 
 and is tried and acquitted on one, the Court 
 may grant the prisoner leave to withdraw his 
 plea of ' not guilty ' on the other, and plead 
 autrefois acquit, ibid. But perhaps such 
 leave might not be necessary, as it is con- 
 ceived that a plea would be good, alleging 
 that after the pleading ' not guilty ' the de- 
 fendant had been acquitted. See R. v. Tay- 
 lor, 3 B. & C. 612, and the precedent of the 
 plea in that case, 4 Ch. Cr. L. 567. It was 
 once held that the prisoner must plead ' not 
 guilty ' to the felony at the same time as
 
 50 
 
 General Provisions. 
 
 [book 
 
 Traversing or Postponing Trial. 1 
 
 By 14 & 15 Vict. c. 100, s. 27, no person prosecuted shall be entitled 
 to traverse or postpone the trial of any indictment found against him 
 
 he pleaded autrefois acquit, R. v. Vander- 
 comb, 1 Leach, 712, note (a), and see R. v. 
 Welsh, R. & M. C. C. R. 175, hut in subse- 
 quent cases the plea of autrefois acquit has 
 been pleaded alone. R. v. Sheen, ante, p. 44 ; 
 R. v. Parry, supra : R. v. Birchenough, ante, 
 p. 48 ; R. v. Welch, Carr. Supp. 56, and see 2 
 Hawk. P. C. c. 23, s. 128. And the prisoner 
 may afterwards pleadj ' not guilty ' to the 
 felony, if the jury find the plea against him, 
 or it be held bad upon demurrer. R. v. 
 Birchenough, supra, 2 Hawk. P. C. c. 23, 
 s. 128. In misdemeanors autrefois acquit 
 alone can be pleaded, as if the judgment be 
 against the defendant it is final. R. v. Tay- 
 lor, 3 B. & C. 502. The plea must formerly 
 have set out the former indictment in order 
 that it might appear to the Court that it 
 was valid on the face of it. R. v. Wildey, 
 1 M. & S. 182. It must also have averred 
 that the prisoner was acquitted by verdict, 
 and that he had judgment quod eat inde sine 
 die, ibid., and it must have concluded with 
 a voucher of the record, ibid. ; it must also 
 have averred the identity of the offences 
 charged in the two indictments, and if the 
 name of a person were different in the two 
 indictments, it must have averred that the 
 person was as well known by the one name 
 as the other. R. v. Sheen, supra, 2 Hawk. 
 P C. c. 35, s. 3. R. v. Austin, 2 Cox, C. C. 
 59. R. v. Hedgcock, 4 Ch. Cr. Law, 530, 
 Kingston, Ass. 1825. For precedents of 
 such pleas, see 4 Ch. Cr. L. 528, et seq. ; R. 
 v. Sheen, supra ; R. v. Dann, supra ; R. v. 
 Clarke, supra. The Crown might either 
 traverse or demur to the plea, and this 
 might be done ore tenus. R. v. Sheen, 
 supra; R. v. Parry, supra. See 4 Ch. Cr. 
 L. 529, 530, 532, precedents of demurrers 
 and joinders in demurrers to such pleas. 
 See a plea of autrefois acquit, pleaded puis 
 darrein continuance, 4 Ch. Cr. L. 567. But 
 now by the 14 & 15 Vict. c. 100, s. 28, 'in 
 any plea of autrefois convict or autrefois 
 acquit it shall be sufficient for any defend- 
 ant to state that he has been lawfully con- 
 victed or acquitted (as the case may be) of 
 the said offence charged in the indictment. 
 As to the forms of pleas under this section, 
 see (heaves' Campb. Acts, p. 88. It should 
 seem that the Crown can only traverse a plea 
 pleaded under this section. The jury to try 
 an issue raised on a plea of autrefois acquit, 
 may be either the jury already in the box, 
 R. v. Parry, supra, or a venire returnable 
 instanter may be awarded to the sheriff. R. 
 v. Sheen, supra; R. v. Scott, 1 Leach, 401. 
 
 Where the prisoner pleads autrefois acquit 
 and 'not guilty' at the same time, the jury 
 cannot be charged to try both the issues at the 
 same time ; but must first be charged with 
 the issue on autrefois acquit, and if that be 
 found against the prisoner, then with the 
 issue on ' not guilty.' R. v. Roche, 1 Leach, 
 134. Where any allegation in the pleas was 
 traversed on the part of the Crown, the pris- 
 oner began, as the affirmative lay upon him. 
 R. v. Sheen, supra: R. v. Parry, 7 C- & P. 
 836. And where a plea is pleaded under the 
 14 & 15 Vict. c. 100, s. 28, it is clear the 
 prisoner must begin. [As to the mode of 
 proof of former acquittal, see vol. 3, Evi- 
 dence.] In felony, if the plea be decided in 
 favor of the prisoner, the judgment is quod 
 eat inde sine die, 2 Hale, 391. R. v. Dann, 
 supra. If the plea be decided against the 
 prisoner, and he has pleaded ' not guilty ' at 
 the same time with it, the trial on the mer- 
 its immediately proceeds. R. v. Vander- 
 comb, supra. If autrefois acquit has been 
 pleaded without 'not guilty,' and the plea 
 is determined against the prisoner, the pris- 
 oner then pleads to the felony, and the trial 
 proceeds in the ordinary course. R. v. 
 Birchenough, ante, p. 48 ; R. v. Coogan, 1 
 Leach, 448. [In misdemeanors the judg- 
 ment is final, R. v. Goddard, 2 Ld. Raym. 
 922 ; 2 Hale, 256.] The general rule, as we 
 have seen, is that the acquittal pleaded must 
 have been for the same felony, and it is 
 clear that an acquittal of one felony is no 
 bar to an indictment for another in sub- 
 stance different, whether committed at the 
 same time or not as that of which the pris- 
 oner was acquitted ; and therefore if a man 
 commit a burglary, and steal the goods of 
 A. and B., and be indicted for the burglary 
 and stealing the goods of A., and be ac- 
 quitted, he cannot plead such an acquittal 
 to an indictment for stealing the goods of B., 
 2 Hawk. P. C. c. 35, s. 5, or to an indict- 
 ment for burglary with intent to steal the 
 goods of A., R. v. Vandercomb, supra; or, 
 it should seem, to an indictment for burglary 
 and stealing the goods of B., ibid. An ac- 
 quittal of a man as accessory before or after 
 is no bar to an indictment against him as a 
 principal, 2 Hawk. P. C. c. 35, s. 12 ; nor 
 is an acquittal as principal any bar to an 
 indictment as accessory after, 2 Hawk. P. C. 
 c. 35, s. 11, 2 Hale, 244. It is said to have 
 been held that an acquittal of a man as 
 accessory to one principal will not save him 
 from being arraigned as accessory to another 
 in the same fact. 2 Hawk. P. C. c. 35, 
 
 American Note. 
 1 See Bishop, i. s. 354.
 
 CHAP. I 
 
 ] 
 
 Traversing or Postponing Trial. 
 
 51 
 
 at any session of the peace, session of oyer and terminer,, or session 
 of gaol delivery : provided always that if the court, upon the applica- 
 
 s. 13. But it is presumed this would only 
 apply where the acquittal of the principal 
 necessarily caused the acquittal of the acces- 
 sory, see R. v. Woolford, 1 M. & Rob. 384, 
 post, and not where the accessory might be 
 convicted on a count for a substantive felony, 
 although the principal were acquitted. See 
 R. v. Pulham, 9 C. & P. 280. We have 
 seen that an acquittal upon a charge of 
 jointly receiving with others is a good bar to 
 an indictment against one of the prisoners 
 alone. R. v. Dann, supra. It is said to be 
 a general rule that a bar in action of an 
 inferior nature will not bar another of a 
 superior nature. 2 Hawk. P. C. c. 35, s. 5. 
 [See R. v. Morris, L. R. 1 C. C. R. 90 ; 36 
 L. J. M. C. 84.] Therefore an acquittal of 
 a misdemeanor would not be a bar to an 
 indictment for a felony, or, vice versa, an 
 acquittal of a felony be a bar to an indict- 
 ment for a misdemeanor. But see now the 
 14 & 15 Vict. c. 100, s. 12, as to an acquittal 
 of a misdemeanor. [Where upon the trial the 
 offence turns out to be a felony, see post ; 
 and see 24 & 25 Vict. c. 96, s. 88, where 
 upon a trial for obtaining money by false 
 pretences a larceny is proved. And see 24 
 & 25 Vict. c. 96, s. 72, as to indictments for 
 embezzlements ; and see 24 & 25 Vict. c. 96, 
 ss. 91, 94, as to indictments for receiving 
 stolen goods. See also 14 & 15 Vict. c. 100. 
 s. 9, as to a person not being acquitted 
 where on a trial for a felony or misde- 
 meanor, an attempt only to commit the 
 offence is proved ; and see 24 & 25 Vict. 
 c. 96, s. 41, as to indictments for robbery.] 
 Yet it seems that an acquittal on an indict- 
 ment for murder was a bar to an indict- 
 ment for petit treason, because both offences 
 were in substance the same. 2 Hawk. 
 P. C. c. 35, s. 5 ; 2 Hale, 246. So an ac- 
 quittal of murder is a good bar to an in- 
 dictment for manslaughter, 2 Hale, 246 ; 
 and so an acquittal of manslaughter is a 
 good liar to an indictment for murder, for 
 the offences only differ in degree, and the 
 fact is the same. 2 Hale, 246 ; Holcroft's 
 case, 4 Rep. 46 b. Where a prisoner is in- 
 dicted for a compound offence, as burglary, 
 robbery, murder, &c, and altogether ac- 
 quitted, it should seem that such acquittal 
 is a good bar to every felony included in 
 such compound offence, of which he might 
 have been convicted on the trial of such 
 compound offence ; thus an acquittal on a 
 burglary charging a stealing of goods would 
 be a good bar to an indictment for stealing the 
 same goods, for on the indictment for bur- 
 glary he might have been acquitted of the 
 burglary and convicted of the larceny only ; 
 and although it is said, 2 Hale, 246, that if 
 a man be 'indicted for burglary and ac- 
 quitted, yet he may be indicted for the lar- 
 ceny, for they are several offences, though 
 committed at the same time ; ' yet this must 
 be intended of an indictment for burglary 
 
 with intent to steal the goods, as is evident 
 from the words which follow, ' and burglary 
 may be where there is no larceny, ami lar- 
 ceny may be where there is no burglary.' 
 And so long as a party indicted for a felony, 
 including an assault, might be convicted on 
 such an indictment of an assault under the 
 
 1 Vict. c. 85, s. 11 (repealed by 14 & 15 
 Vict. c. 100, s. 10), an acquittal on such an 
 indictment was held a good bar to an indict- 
 ment for the same assault. R. v. Gould, 9 
 C. & P. 364 ; R. v. Bird, 2 Den. C. C. 94. 
 So, whilst the 1 Vict. c. 85, s. 11, was in 
 force, an acquittal or conviction of a common 
 assault before two justices of the peace 
 under the 9 Geo. 4, c. 31, s. 27, was held to 
 be a bar to an indictment for feloniously 
 wounding with intent to maim, &c, in the 
 same transaction. R. v. Walker, 2 M. & 
 Rob. 446, Coltman, J. Where, on an indict- 
 ment for a rape, the evidence failed to sup- 
 port that offence, Pollock, C. B., directed an 
 acquittal, though under the 1 Vict. c. 85, 
 s. 11, there might have been a conviction of 
 an assault : and said that this acquittal 
 would not support a plea of autrefois acquit 
 to an indictment for an assault with intent 
 to commit a rape. R. v. Gisson, 2 C. & K. 
 781. And on an indictment for feloniously 
 stabbing with intent to do grievous bodily 
 harm, the evidence to prove the felony being 
 insufficient, and it appearing to be a mere 
 question of assault, Pollock, C. B., directed 
 an acquittal, and said, 'It had better be 
 inquired of in another tribunal.' R. v. 
 Goadby, 2 C. & K. 782 note (a). This and 
 the preceding case seem very questionable. 
 Generally speaking, an acquittal in one 
 county can only be pleaded in the same 
 county, because all indictments are local, 
 and if the first were laid in an improper 
 county, the defendant could not be found 
 guilty upon it, 2 Hawk. P. C. c. 35, s. 3 ; 
 
 2 Hale, 245 ; and if the first indictment 
 were laid in the proper county the second 
 must be an improper one, and therefore the 
 defendant, not being liable to be found guilty 
 upon it, is not put to plead autrefois acquit. 
 2 Hawk. P. C. c. 35, s. 3. But there seem 
 to be many exceptions to this rule. Thus, 
 where a man steals goods in one county, and 
 carries them into another, as he may be in- 
 dicted in either, it seems but reasonable that 
 he should plead the acquittal in one county 
 in bar to a subsequent indictment in tin- 
 other county, 2 Hawk. P. C. c. 35, s. 4 : but 
 this point does not seem settled ; and Lord 
 Hale, 2 P. C. 245, says, it seems that an 
 acquittal in the county into which the goods 
 are carried is no bar, because it may be the 
 goods were never brought into that county, 
 and so the felony may not have been in 
 question ; but this reason rather tends to 
 show that an acquittal in the county wliere 
 the goods were stolen would be a bar to an 
 indictment in the county into which they
 
 52 
 
 General Provisions. 
 
 [book i. 
 
 tion of the person so indicted or otherwise, shall be of opinion that he 
 ought to be allowed a further time, either to prepare for his defence or 
 otherwise, such court may adjourn the trial of such person to the next 
 subsequent session, upon such terms as to bail or otherwise as to such 
 court shall seem meet, and may respite the recognizances of the prose- 
 cutor and witnesses accordingly, in which case the prosecutor and 
 witnesses shall be bound to attend to prosecute and give evidence at 
 such subsequent session without entering into any fresh recognizance 
 for that purpose. A person committed for felony can insist on being 
 indicted at the sessions or assizes to which he is committed if the wit- 
 nesses for the Crown are ready, (i) If, however, it appears upon oath 
 that the witnesses for the Crown cannot then be produced, he may be 
 committed to the next assizes or sessions without being released on 
 bail, (/') and the judge has power again to postpone the trial if there 
 is material evidence for the Crown which cannot then be produced ; (k) 
 but it seems that the presentment of a bill to the grand jury cannot be 
 postponed on the ground that there are other charges which may be 
 brought against the prisoner. (I) A trial has been postponed on the 
 
 were carried, for in such case the felony must 
 have been in question. If A. rob B. in the 
 county of C, and carry the goods into D., 
 though he cannot be indicted of robbery in 
 D., yet he may of larceny, and if acquitted, 
 that acquittal of larceny is no bar to an in- 
 dictment for robbery in O, because it is 
 another offence. 2 Hale, 245. So if A. 
 commit a burglary in the county of B., and 
 carry the goods into C. , if he be acquitted 
 of larceny in C. he may be indicted for the 
 burglary in B., ibid. Where an acquittal 
 pleaded in a foreign county has been al- 
 lowed, as in 41 Ass. 9, it must be intended 
 of an indictment removed out of that county 
 where the prisoner was first indicted. 2 
 Hale, 245. The correct rule appears to be 
 that an acquittal in any court whatsoever, 
 which has jurisdiction over the case, is 
 a good bar to any subsequent prosecution 
 for the same crime. 2 Hawk. c. 35, s. 10. 
 And therefore an acquittal for murder at a 
 grand session in Wales may be pleaded to an 
 indictment for the same murder in England, 
 ibid. So an acquittal of murder before a 
 court of competent jurisdiction in a foreign 
 country is a good bar to an indictment for 
 the same murder in this country. R. v. 
 Roche, 1 Leach, 134 ; R. v. Hutchinson, 3 
 Keb. 785, cited in Beak v. Thyrwhit, 3 
 Mod. 194, 1 Show. 6. And it should seem 
 that in all those cases where offences are 
 made triable in two or more counties, as 
 each county has jurisdiction, an acquittal in 
 one would be a good bar to an indictment in 
 the other county. The acquittal, in order 
 to be a bar, must be by verdict on a trial. 
 2 Hale, 246 ; 2 Hawk. P. C. c. 35, s. 6. A 
 
 discharge, therefore, by the jury on a coro- 
 ner's inquest is no bar. 2 Hale, 246. But 
 an acquittal through the misdirection of a 
 judge is a good bar, ibid. So if a court upon 
 a special verdict erroneously adjudge it to be 
 no felony, as long as this judgment is unre- 
 versed, the prisoner may plead it in bar to 
 another indictment, ibid.; but if the judg- 
 ment be reversed the party may be indicted 
 de novo, ibid., R. v. Drury, 3 C. & K. 193 ; 
 18 L. J. M. C. 189, for a judgment reversed 
 is the same as no judgment. This note is by 
 Mr. Greaves, except the parts within brack- 
 ets. [A jury sworn and charged with a 
 prisoner may be discharged without giving a 
 verdict if a necessity requires it. l The judge 
 at the trial is to decide whether such neces- 
 sity has arisen, and his decision is not sub- 
 ject to review. Such a discharge is not a bar 
 to a subsequent trial of the prisoner for the 
 same offence, either upon the same or a fresh 
 indictment, Winsor v. R. 35 L. J. M. C. 161, 
 121 ; L. R. 1 Q. B. 289 ; ib. 390, Ex. Ch. 
 This was an indictment for murder.] In a 
 recent capital case in which a juryman dur- 
 ing the course of the trial separated himself 
 from his fellows and mingled with the out- 
 side public, Kennedy, J., directed the jury 
 to be discharged, and a fresh jury being sub- 
 sequently empanelled, the prisoner was tried 
 and convicted. R. v. Macrae, Northampton 
 Assizes, Dec. 1892. 2 
 
 (i) 31 Car. II. c. 2, s. 6. 
 
 (j) R. v. Chapman, 8 C. & P. 558. 
 
 (k) R. v. Bowen, 9 C. & P. 509, and see 
 R. v. Dripps, 13 Cox, C. C. 25. 
 
 (I) R. v. Heeson, 14 Cox, C. C. 40. 
 
 American Notes. 
 
 i See Bishop, i. ss. 1034, 1035. 
 
 2 The same course seems to be adopted in America, see Bishop, i. s. 1038.
 
 chap. I.] Amendments at the Trial. 53 
 
 ground that infection might be conveyed to the public by bringing 
 into court witnesses for the Crown who were themselves able to 
 travel, but came from an infected place, (m) 
 
 Amendment of Indictment at the Trial. 
 
 The 9 Geo. 4, c. 15, after reciting that ' great expense is often 
 incurred, and delay or failure of justice takes place at trials, by 
 reason of variances between writings produced in evidence and the 
 recital or setting forth thereof upon the record on which the trial 
 is had, in matters not material to the merits of the case, and such 
 record cannot now in any case be amended at the trial, and in some 
 cases cannot be amended at any time,' enacts that ' it shall and may 
 be lawful for every court of record holding plea in civil actions, any 
 judge sitting at nisi prius, and any court of oyer and terminer and 
 general gaol delivery in England, Wales, the town of Berwick-upon- 
 Tweed, and Ireland, if such court or judge shall see fit so to do, to 
 cause the record on which any trial may be pending before any such 
 judge or court in any civil action, or in any indictment or information 
 for any misdemeanor, when any variance shall appear between any 
 matter in writing or in print produced in evidence, and the recital or 
 setting forth thereof upon the record whereon the trial is pending, to 
 be forthwith amended in such particular by some officer of the court, 
 on payment of such costs (if any) to the other party as such judge or 
 court shall think reasonable, and thereupon the trial shall proceed as 
 if no such variance had appeared ; and in case such trial shall be had 
 at nisi prius, the order for the amendment shall be indorsed on the 
 postea, and returned together with the record ; and thereupon the 
 papers, rolls, and other records of the court from which such record 
 issued shall be amended accordingly.' 
 
 It was held in two cases that amendments ought to be made very 
 sparingly under this statute, (n) But where an indictment for perjury 
 alleged that the defendant produced an affidavit entitled in the Court of 
 Chancery, and in the suit therein at the suit of E. J. Christian, and in 
 the suit therein at the suit of the Commissioners of Charitable Dona- 
 tions and Bequests in Ireland, and the affidavit when produced was en- 
 titled ' In Chancery between the Commissioner of Charitable Donations 
 and Bequests in Ireland,' &c, Lord Denman, C. J., ordered the record 
 to be amended by striking out the word ' entitled.' (o) And where 
 an indictment for perjury stated that the defendant made an affidavit 
 in which (amongst other things) he swore that an officer, who had 
 arrested him, was appointed ' at the special instance and part of the 
 said plaintiff',' and the affidavit itself stated that the officer was 
 appointed ' at the special instance and peril of the said plaintiff,' it 
 was held that the indictment might be amended, no assignment of 
 perjury being made upon that averment, (jj) The same indictment 
 set out another part of the affidavit (on which also there was no 
 
 (m) R. v. Taylor, 15 Cox, C. C. 8. No and Littledale, J. R. v. Hewins, 9 C. & P. 
 
 objection seems to have been taken by the 786, Coleridge, J. ; Jelf v. Oriel, 4 C. & P. 22. 
 prisoner to the postponement. (o) R. v. Christian, C. & M. 388. 
 
 {n) R. Cooke, 7 C. & P. 559, Patteson, J., (p) R. v. Newton, 1 C. & K. 469.
 
 54 General Provisions. [book i. 
 
 assignment of perjury) thus : the officer ' went round to the door of 
 the back kitchen of the deponent's said dwelling-house, which is 
 the only outer door of the same,' and in the affidavit itself the words 
 were ' the only other outer door,' and it was held that this variance 
 might be amended, (q) 
 
 The 11 & 12 Vict. c. 46, s. 4, recites that ' a failure of justice frequently 
 takes place in criminal trials by reason of variances between writings 
 produced in evidence and the recital or setting forth thereof in the 
 indictment or information, and the same cannot now be amended at 
 the trial, except in cases of midemeanor,' and enacts ' that it shall 
 and may be lawful for any court of oyer and terminer and general 
 gaol delivery, if such court shall see fit so to do, to cause the indict- 
 ment or information for any offence whatever, when any variance or 
 variances shall appear between any matter in writing or in print 
 produced in evidence, and the recital or setting forth thereof in the 
 indictment or information whereon the trial is pending, to be forth- 
 with amended in such particular or particulars by some officer of the 
 court, and after such amendment the trial shall proceed in the same 
 manner in all respects, both with regard to the liability of witnesses 
 to be indicted for perjury and otherwise, as if no such variance or 
 variances had appeared.' 
 
 By the 12 and 13 Vict. c. 45, s. 10, 'every court of general or quarter 
 sessions of the peace, on the trial of any offence within its jurisdiction, 
 whenever any variance or variances shall appear between any matter 
 in writing or in print produced in evidence, and the recital or setting 
 forth thereof in the indictment, shall have the same power in all 
 respects to cause the indictment to be amended which is given to 
 courts of oyer and terminer and general gaol delivery with regard to 
 offences tried before such last-mentioned courts by virtue of an Act 
 (11 & 12 Vict. c. 46, szcpra), and after such amendment the trial shall 
 proceed in the same manner in all respects, both with regard to the 
 liability of witnesses to be indicted for perjury and otherwise, as if no 
 such variance or variances had appeared.' 
 
 The 14 and 15 Vict. c. 100, reciting that ' offenders frequently 
 escape conviction on their trials by reason of the technical strict- 
 ness of criminal proceedings in matters not material to the merits 
 of the case : and whereas such technical strictness may safely be 
 relaxed in many instances, so as to ensure the punishment of the 
 guilty, without depriving the accused of any just means of defence : ' 
 enacts, by sec. 1, that 'whenever on the trial of any indictment (r) for 
 any felony or misdemeanor there shall appear to be any variance be- 
 tween the statement in such indictment and the evidence offered in 
 proof thereof, in the name of any county, riding, division, city, borough, 
 town corporate, parish, township, or place mentioned or described in 
 any such indictment, or in the name or description of any person or 
 persons, or body politic or corporate, therein stated or alleged to be the 
 owner or owners of any property, real or personal, which shall form 
 the subject of any offence charged therein, or in the name or descrip- 
 tion of any person or persons, body politic or corporate, therein stated 
 or alleged to be injured or damaged or intended to be injured or 
 
 (q) R. v. Newton, supra. <r) See the interpretation clause, s. 30, 
 
 ante, p. 26.
 
 chap, i.] Amendments at the Trial. 55 
 
 damaged by the commission of such offence, or in the Christian name 
 or surname, or both Christian name and surname, or other description 
 whatsoever, of any person or persons whomsoever therein named or 
 described, or in the name or description of any matter or thing what- 
 soever therein named or described, or in the ownership of any property 
 named or described therein, it shall and may be lawful for the court 
 before which the trial shall be had, if it shall consider such variance 
 not material to the merits of the case, and that the defendant cannot be 
 prejudiced thereby in his defence on such merits, to order such indict- 
 ment to be amended, according to the proof, by some officer of the 
 court or other person, both in that part of the indictment where such 
 variance occurs and in every other part of the indictment which it 
 may become necessary to amend, on such terms, as to postponing the 
 trial to be had before the same or another jury, as such court shall 
 think reasonable ; and after any such amendment the trial shall proceed, 
 whenever the same shall be proceeded with, in the same manner in 
 all respects, and with the same consequences, both with respect to the 
 liability of witnesses to be indicted for perjury and otherwise, as if no 
 such variance had occurred ; and in case such trial shall be had at 
 nisi prius the order for the amendment shall be endorsed on the 
 postea, and returned together with the record, and thereupon such 
 papers, rolls, or other records of the court from which such record 
 issued as it may be necessary to amend shall be amended accordingly 
 by the proper officer, and in all other cases the order for the amend- 
 ment shall either be endorsed on the indictment or shall be engrossed 
 on parchment, and filed, together with the indictment, among the 
 records of the court : Provided that in all such cases where the trial 
 shall be so postponed as aforesaid it shall be lawful for such court to 
 respite the recognizances of the prosecutor and witnesses, and of the 
 defendant, and his surety or sureties, if any, accordingly, in which 
 case the prosecutor and witnesses shall be bound to attend to prose- 
 cute and give evidence respectively, and the defendant shall be bound 
 to attend to be tried, at the time and place to which such trial shall 
 be postponed, without entering into any fresh recognizances for that 
 purpose, in such and the same manner as if they were originally 
 bound by their recognizances to appear and prosecute or give evidence 
 at the time and place to which such trial shall have been so post- 
 poned : Provided also, that where any such trial shall be to be had 
 before another jury the Crown and the defendant shall respectively 
 be entitled to the same challenges as they were respectively entitled 
 to before the first jury was sworn.' 
 
 Sec. 2. ' Every verdict and judgment which shall be given after the 
 making of any amendment under the provisions of this Act shall be 
 of the same force and effect in all respects as if the indictment had 
 originally been in the same form in which it was after such amend- 
 ment was made.' 
 
 Sec. 3. ' If it shall become necessary at any time, for any purpose 
 whatsoever, to draw up a formal record in any case where any amend- 
 ment shall have been made under the provisions of this Act, such 
 record shall be drawn up in the form in which the indictment was 
 after such amendment was made, without taking any notice of the 
 fact of such amendment having been made.'
 
 56 General Provisions. [book i. 
 
 By sec. 30, ' the word " indictment " shall be understood to include 
 "information," "inquisition," and " presentment," as well as indict- 
 ment, and also any "plea," "replication," or other pleading, and any 
 nisi prius record.' 
 
 On a comparison of these several enactments, it will be seen that 
 the 9 Geo. 4, c. 15, empowered any judge at nisi prius, or any court of 
 oyer and terminer and general gaol delivery, to amend any variance, in 
 cases of misdemeanor only, between any matter in writing or in print 
 and the recital or setting forth thereof upon the record. The 11 & 12 
 Vict. c. 46, s. 4, empowered any court of oyer and terminer and general 
 gaol delivery to amend any variance in any offence whatever between 
 any matter in writing or in print and the recital or setting forth 
 thereof on the record. The 12 & 13 Vict. c. 45, s. 10, gave the same 
 power of amendment to every court of general or quarter sessions, on 
 the trial of any offence within its jurisdiction, as was given by the 11 
 & 12 Vict. c. 46, to courts of oyer and terminer and general gaol deliv- 
 ery. Lastly, the 14 and 15 Vict. c. 100, empowers every court on the 
 trial of any felony or misdemeanor to amend any of the variances 
 therein included, whether there be any writing to amend by or not. 
 
 In considering whether a variance should be amended under these 
 statutes the court will have to determine the following questions : 
 First, whether the variance be in one of the matters included in 
 these statutes ; secondly, whether it be ' not material to the merits of 
 the case ; ' and lastly, if it be not material to the merits of the case, 
 whether the defendant may be prejudiced by the amendment in his 
 defence on such merits, (s) 
 
 With regard to the ' merits of the case,' these terms, as applied 
 to all criminal cases, obviously mean the substantial truth and jus- 
 tice of the case with reference to the guilt or innocence of the 
 prisoner. When we say that a prisoner has been acquitted upon 
 the merits, we mean that the jury have heard and considered all 
 the evidence adduced with reference to the guilt or innocence of 
 the prisoner of the offence charged, and have acquitted him on the 
 ground that the charge was not proved. It would be a perversion 
 of language to say that a prisoner had been acquitted on the merits, 
 when he was acquitted on the ground of some trifling variance or 
 technical objection. It is to be observed also that a matter may well 
 constitute some part of the merits of a case, and yet a variance as to 
 such matter may not be material to the merits of the case within the 
 meaning of this Act. Thus, on a trial for stealing an animal, the proof 
 of the animal as described constitutes a part of the merits of the case, 
 and yet the description of it as a ewe instead of a lamb may not be in 
 the least degree material to the merits of the case, as the animal may 
 be of such an age that it may be doubtful whether the one or the other 
 appellation be more correct, (t) 
 
 (s) The last Act only specifies tlie 2nd said, that ' not material to the merits ' 
 and 3rd particulars, but it is obvious that means not material to the real question be- 
 any court would take thero into its consid- tween the parties; Parke, B., 'By the term 
 eration in determining whether an amend- "merits of the case," I understand the sub- 
 ment ought to be made under the previous stantial merits of the case ;' and Rolfe, B., 
 statutes. 'The words "not material to the merits" 
 
 [t) In the Pacific Steam Navigation Co. mean not material to the real merits of the 
 
 v. Lewis, 16 M. & W. 783, Pollock, C. B., case.'
 
 chap. I.] Amendments at the Trial. 57 
 
 It is also to be observed that the amendment may be made, unless 
 the defendant may be ' prejudiced thereby in his defence upon such 
 merits.' A prejudice therefore to the defence is not sufficient ; it 
 must be a prejudice to the defence upon the merits. Indeed, wherever 
 any variance occurs, an amendment may be said to prejudice the 
 defence ; for if it were not made, the prisoner would be acquitted. 
 The prejudice, therefore, which is to prevent an amendment, is con- 
 fined to a prejudice to the defence upon the merits, which clearly 
 means a substantial and not a formal or technical defence to the 
 charge. 
 
 We have seen that in two cases under the 9 Geo. 4, c. 15, it was held 
 that amendments in criminal cases ought to be sparingly made ; (u) 
 but it must be remembered that those cases occurred at a time when 
 the power of amendment may be considered as having been on its 
 trial, and the legislature had not then spoken in the clear language in 
 favour of amendments, either in civil or criminal cases, which it has 
 since used, and therefore these cases can no longer be considered as 
 any authority. It has been well laid down by a learned judge, that a 
 statute like the 14 & 15 Vict. c. 100, should have a wide construction, 
 and should not be interpreted in favor of technical strictness, (v) 
 and there are very strong reasons why a liberal construction should 
 be made on such a statute. 
 
 Instances where amendments allowed. — A judge on the trial of an 
 indictment for perjury has power to amend the description of an Act 
 of Parliament in the indictment, (w) An indictment alleged that the 
 prisoner committed perjury on the trial of an indictment for setting 
 fire to a certain barn ; but the record was of an indictment for setting 
 fire to a certain stack of barley, and it was held that the words " stack 
 of corn " might be inserted instead of barn, as this was one of the 
 very cases for which the statute was passed, (x) 
 
 Where the indictment stated that the prisoner had committed per- 
 jury at the hearing of a summons before the magistrates charging a 
 woman with being drunk, whereas the summons was really for being 
 drunk and disorderly, Lush, J., ruled that he had power, under the 
 14 & 15 Vict. c. 100, s. 1, to amend the indictment by adding the 
 words " and disorderly. " {y) 
 
 An indictment alleged that the prisoner stole nineteen shillings 
 and sixpence. The Court ordered it to be amended at the trial 
 by describing the property stolen to be a sovereign, subject to 
 the question whether the Court had power so to do. The jury 
 found the prisoner guilty of stealing a sovereign : — Held, that 
 the Court had power to order the amendment to be made as 
 a variance between the statement and the proof in the descrip- 
 
 (m) Ante, p. 53. But now a totally different principle prevails ; 
 
 (v) Per Byles, J., R. v. Welton, 9 Cox, every amendment is to be made which is neces- 
 
 C. C. 297, post. In St. Losky v. Green, sary for determining the real question in con- 
 
 9 C. B. (~N. S. ) 370, Byles, J., said, ' Vari- troversy between the parties.' 
 ous statutes have from time to time for (w) R. v. Westley, 29 L. J. M. C. 35, 
 
 more than 500 years heen passed, from the Bell, C. C. 193. 
 
 14 Edw. 3, c. 6, downwards, to facilitate (x) R. v. Neville, 6 Cox, C. C. 69, Wil- 
 
 amendments, but the strict and almost per- liams, J. 
 
 verse construction which the judges put (y) R. v. Tymms, 11 Cox, C. C. 645. 
 
 upon them rendered them nearly abortive.
 
 58 General Provisions. [book i. 
 
 tion of a thing named in the indictment, under 14 & 15 Vict. c. 100, 
 
 S. l.(s) 
 
 Where an indictment against two bankrupts alleged that they 
 embezzled a part of their personal estate to the value of £10, to 
 wit, certain bank notes and certain moneys, and it rather seemed 
 that the money converted was foreign money ; it was held that the 
 statement under the videlicet was material, as the indictment would 
 have been bad without a description of the property, and that ' moneys ' 
 meant English moneys ; and the court refused to amend the indict- 
 ment, (a) An indictment alleged that Saunders stole a bushel of a 
 certain mixture consisting of oats and peas, and that Robinson received 
 the goods aforesaid so as aforesaid feloniously stolen, and Saunders 
 proved that he stole pure oats and peas, and then mixed them, and 
 afterwards sold them to Eobinson, and it was held that there was a 
 variance, as the one prisoner did not steal a mixture and the other did 
 not receive a mixture which had been stolen, and an amendment was 
 refused, (b) 
 
 Where goods were laid as the property of M. Archard, who was a 
 carman, and the clerk of the London Dock Company had delivered 
 the goods by mistake to the prisoner, who had been sent by Archard 
 for other goods ; it was held that the indictment was properly amended 
 by inserting the London Dock Company for M. Archard. (c) 
 
 So where the prisoner was charged with throwing Annie Welton 
 into the water with intent to murder her, and there was no proof of 
 the name of the child, it was held that the indictment might be 
 amended by striking out Annie Welton and inserting ' a certain 
 female child whose name is to the jurors unknown.' (d) 
 
 Perjury was assigned to have been committed on the hearing of a 
 complaint for trespass in pursuit of game alleged to have been com- 
 mitted in a close in the parish of T., in the borough of T., before certain 
 justices assigned to keep the peace in and for the said county, and 
 acting in and for the borough of T., in the said county. It appeared 
 in evidence that the justices were justices for the borough of T. only, 
 and were not justices for the county. The indictment was amended 
 at the trial by striking out the words ' the said county,' so as to make 
 the averment be that they were justices assigned to keep the peace 
 in and for, and acting in and for, the borough of T., in the said county. 
 Held, that the amendment was properly made as a variance in the 
 
 (~) R. v. Gumble, 42 L. J. M. C. 7, the judge would not amend ;' but the body 
 
 L. R. 2 C. C. R. 1. of the report contains no such point. Pol- 
 
 (a) R. v. Davison, 7 Cox, C. C. 158, lock, C. B., had refused to take a verdict of 
 Alderson, B., and Coleridge, J. Alderson, guilty, as there was no sufficient corrobora- 
 B., is reported to have said, 'Neither my tion of Saunders. This case must not be 
 learned brother nor myself think that the taken as any authority against amending 
 statute allowing amendments applied to such the description of stolen property. All it 
 a case as this.' But the marginal note is amounts to is that the judge did not think 
 that the averment was ' such as the court in fit to amend on the uncorroborated evidence 
 its discretion would decline to amend.' The of the thief. 
 
 case seems to be one in which an amend- (c) R. v. Vincent, 2 Den. C. C. 464, 21 
 
 ment clearly might have been made. L. J. M. C. 109. 
 
 (b) R. v. Robinson, 4 F. & F. 43, Pol- (d) R. v. Welton, 9 Cox, C. C. 297, 
 lock, C. B. The marginal note states that, Byles, J. 
 
 ■ there being no evidence but that of the thief,
 
 chap. I.] Amendments at the Trial. 59 
 
 description of a person described in the indictment under 14 & 15 
 Vict. c. 100, s. 1. (e) 
 
 An indictment alleged that a footway led from a turnpike-road into 
 the town of Gravesend, but the highway was a carriage-way from the 
 turnpike-road to the top of Orme House Hill, and from thence to 
 Gravesend it was a footway, and the nuisance alleged was between 
 the top of Orme House Hill and Gravesend ; it was held that the 
 indictment might be amended by substituting a description of a foot- 
 way running from Orme House Hill to Gravesend, as this appeared to 
 be the very sort of case for which the legislature meant to provide (f). 
 Where an indictment for the non-repair of a highway charged the 
 inhabitants of the whole township of Dukinfield with the liability to 
 repair, and it was objected that by the Stalybridge Improvement Act, 
 9 Geo. 4, c. 26, the inhabitants of that portion of the township which 
 lies within the limits of the town of Stalybridge were exempted from 
 liability to repair highways within the parts of the township not 
 within these limits, except as to a certain road, not the subject of this 
 indictment ; Keating, J., whilst expressing a doubt as to his power to 
 amend, decided that the indictment should be taken as amended, so as 
 to comprise only the inhabitants of the parts of the township lying 
 beyond the limits of the town of Stalybridge. (g) 
 
 An indictment for bigamy alleged that the prisoner was apprehended 
 in the county of Gloucester, and this not being proved, it was held that 
 it might be amended by alleging that the prisoner was in custody in 
 that county. (A) 
 
 One count charged Winch with stealing the property of E. Robinson 
 and others ; another count charged Chaplin with the substantive felony 
 of receiving the aforesaid goods. Winch pleaded guilty, and on the 
 trial of Chaplin the felonious receiving was proved, but the names 
 of the prosecutors were not proved ; and it was held that the count 
 for receiving might be amended by stating the goods to be the prop- 
 erty of persons unknown, (i) 
 
 An amendment will not be made where the effect will be to change 
 the offence charged to another offence. On an indictment for abusing 
 a girl above the age of ten and under the age of twelve years, it was 
 proved that the girl was under ten years of age, and it was held that 
 the indictment could not be amended. (J) So where on an indictment 
 for forging an undertaking for the payment of money, the instrument 
 turned out not to be of that character, but, if it were a foi-gery at all, 
 it was a forgery at common law ; it was held that there was no power 
 
 (e) R. v. Western, 37 L. J. M. C. 81 ; with stealing the goods of Robinson and 
 
 L. R. 1 C. C. R. 122. others, and Chaplin with receiving the said 
 
 (/) R. y._Sturge, 3 E. & B. 734; 23 goods so feloniously stolen, and a difficulty 
 
 L. J. M. C. 172. was started as to amending the charge against 
 
 (rj) R. v. Dukinfield, 4 B. &S. 158. There Chaplin, as Winch had admitted the goods 
 
 was a conviction, but it was held wrong on to be those of Robinson and others ; but 
 
 the facts ; but in the argument it was taken this difficulty was avoided by amending the 
 
 for granted that the variance might be count for the substantive felony, 
 
 amended. (/) R. v. Shott, 3 C. & K. 206, Maule, 
 
 (h) R. v. Smith, 1 F. & F. 36. It seems J. By the Act in force at the time of this 
 
 that this was an unnecessary amendment, decision, to abuse a girl under ten was a 
 
 see post. felony, and to abuse a girl between ten and 
 
 (i) R. v. Winch, 6 Cox, C. C. 523, twelve was a misdemeanor. 
 Piatt, B. The first count charged Winch
 
 60 General Provisions. [book i. 
 
 to amend the indictment by striking out the word " feloniously." (A) 
 Where a count charged the prisoners with assaulting a gamekeeper 
 who attempted to apprehend them whilst committing an offence 
 against the 9 Geo. 4, c. 69, s. 1, and it turned out that the prisoners 
 were attempting to take tame pheasants ; Pollock C. B., refused 
 to allow the indictment to be amended by alleging an assault in re- 
 sisting their apprehension whilst the prisoners were committing an 
 indictable offence. (/) 
 
 An amendment ought not to be made if the indictment would 
 thereby be liable to be objected to on demurrer, though it would be 
 good after verdict ; as the prisoner would be deprived of his right to 
 demur to it. (m) 
 
 In an indictment for obtaining money by false pretences it is neces- 
 sary to allege that the obtaining was ' with intent to defraud/ and 
 when those words are omitted in the indictment, it cannot be amended 
 by inserting them, in) 
 
 An indictment alleged that the prisoner pretended that he had 
 served a certain order of affiliation on J. Bell ; but the evidence was 
 that the prisoner had said that he had left the order with the landlady 
 at the Chesterfield Arms, where Bell lodged, he being out ; and it was 
 held that there was a variance ; for the allegation in the indictment 
 meant a personal service of the order; and that this variance was not 
 amendable under the 14 & 15 Vict. c. 100, s. 1, as it was not a vari- 
 ance in the name or description of any matter or thing named or de- 
 scribed in the indictment, (o) But where an indictment alleged that 
 the prisoners pretended that a certain vessel called the Castenet was 
 in Penarth Roads, and the evidence failed to show that the prisoners 
 pretended that the vessel was the Castenet, it was held that the 
 indictment might be amended by striking out those words, (p) 
 
 Where an indictment alleged that the prisoner endeavoured to con- 
 ceal the birth of her child by placing it in and among a heap of car- 
 rots, and the proof was that the body was placed on the back of the 
 heap, so that the middle of the heap by its height hid the body ; it 
 was held that, under the 14 & 15 Vict. c. 100, s. 1, there was no juris- 
 diction to amend the variance, (q) 
 
 Time and place for amending. — Whether an amendment should be 
 be made or not is for the judge, and no question should be left 
 
 (it) R. v. Wright, 2 F. & F. 320, Hill, J. to be made in such a manner as that the in- 
 
 It must be remembered that the challenges dictment should not be in any way defective, 
 and the swearing of the jurors differ in felony (n) R. v. James, 12 Cox, C. C. 127, 
 
 and misdemeanor. Lush, J. 
 
 (?) R. v. Garnbam, 8 Cox, C. C. 451. (o) R v. Bailey, MSS. C. S. G.; S. C. 
 
 See this case, post. It does not appear upon 6 Cox, C. C. 29, Greaves, Q. C, after con- 
 
 what ground the amendment was refused. suiting Piatt, B. 
 
 (m) R. v. Lallement, 6 Cox, C. C. 204, (p) R. v. Baroisse, 5 Cox, C. C. 559, 
 
 Jervis, C. J., and Alderson, B. In this case Wightman, J., who does not appear to have 
 
 the indictment alleged that the prisoner shot been satisfied that the amendment was prop- 
 
 at a person unknown with intent to murder erly made ; as he left the case to the jury on 
 
 him, and the amendment proposed was to another count, in order to relieve the case 
 
 insert "with intent to murder" in the words from any difficulty as to the amendment, 
 of the 1 Vict. c. 85, s. 2, but the court thought (q) Anonymous, 6 Cox, C. C. 391, 
 
 that it might be a question whether the in- Crompton, J., who gave no reason for the 
 
 dictment would not then be demurrable for decision, 
 generality ; and that the amendment ought
 
 chap. I.] Amendments at the Trial. 61 
 
 to the jury as to any fact which may arise as to the propriety of 
 making it. (r) 
 
 An indictment for night-poaching described the land as in the 
 occupation of George William Frederick Charles, Duke of Cambridge, 
 but none of the witnesses was able to prove all the Christian names 
 of the Duke ; one witness, however, swore that George William 
 were two of the Christian names of the Duke, but he believed the 
 Duke had some other Christian names, but he could not say what 
 they were. The sessions refused to amend the indictment by strik- 
 ing out the names Frederick Charles ; and, on a case reserved on 
 the question whether the sessions were bound to amend the indict- 
 ment by striking out the names Frederick Charles, it was held that 
 they were not bound to do so, as it was in their discretion whether 
 they would amend or not ; that the sessions ' were right in not 
 making an amendment in the manner prayed ; but that they would 
 have been wrong if they had been applied to to strike out the 
 Christian names altogether, leaving the prosecutor described as the 
 Duke of Cambridge, and had refused to do so.' (s) As no amend- 
 ment was made it was held that the prisoners ought to have been 
 acquitted, (t) 
 
 The amendment must be made by the court before which the trial 
 takes place ; (u) unless the record has been removed into the Court of 
 Queen's Bench and the trial is at nisi prius ; and in that case the 
 judge, with the consent of counsel, may reserve for the court above 
 the question whether the amendment ought to have been made, with 
 leave to enter a verdict for the Crown if the amendment ought to have 
 been made, (v) 
 
 As a general rule, the proper course when the counsel for the prose- 
 cution wishes for an amendment, is for him to ask for it before he 
 closes his case, and then if the amendment is allowed, the counsel 
 for the prisoner addresses the jury on the indictment so amended, (w) 
 But where the prisoners were charged with stealing rabbits, the prop- 
 erty of Edward Critchley, and the rabbits turned out to be the prop- 
 erty of John Critchley and another, but the mistake was not discovered 
 until the prisoner's counsel had addressed the jury ; it was held that 
 the indictment ought to be amended (x), and it seems that an 
 amendment may be made at any time before the verdict, but not 
 afterwards, (y) 
 
 Any one familiar with criminal trials must have met with cases 
 where variances have not been discovered until just before the ver- 
 dict is given. By the statute the amendment may be made ' on the 
 trial,' and the trial is clearly continuing until the verdict is given. 
 
 (r) See Bartlett v. Smith, 11 M. & W. (w) R. v. Rymes, 3 C. & K. 326. 
 
 483, Major Campbell's Case there cited by \x) R. v. Fullarton, 6 Cox, C. C. 194, 
 
 Parke, B., and an Anonymous case, ibid. Monahan, C. J., and Lefroy, C. J. 
 Boyle v. Wiseman, 11 Exch. 360. R. v. (y) Per Parke, B., R. v. Frost, Dears. 
 
 Hill, 2 Den. C. C. 254. C. C. 474. Per Crompton, J., ibid. See, 
 
 (s) Per Parke, B. per Alderson, B., Brashier v. Jackson, 6 
 
 (t) R. v. Frost, Dears. C. C. 474. M. & W. 549. R. v. Larkin, Dears. C. C. 
 
 (u) R. v. Harris, Dears. C. C. 344. 365, 23 L. J. M. C. 125. R. v. Oliver, 13 
 
 R. v. Frost, Dears. C. C. 474. Cox, C. C. 5S8. 
 
 (t>) R. v. Sturge. 3 E. & B. 734. And 
 see R. v. Dukinfield, 4 B. & S. 158.
 
 62 General Provisions. [book i. 
 
 Where the indictment as it originally stood was proved at the trial, 
 but as amended it was not, the Court quashed the conviction, (z) 
 
 On trial for misdemeanor no acquittal if offence a felony. 
 
 By 14 & 15 Vict. c. 100, s. 12, if upon the trial of any person for any 
 misdemeanor it shall appear that the facts given in evidence amount in 
 law to a felony, such person shall not by reason thereof be entitled to 
 be acquitted of such misdemeanor ; and no person tried for such misde- 
 meanor shall be liable to be afterwards prosecuted for felony on the 
 same facts, unless the court before which such trial may be had shall 
 think fit, in its discretion, to discharge the jury from giving any ver- 
 dict upon such trial, and to direct such person to be indicted for 
 felony, in which case such person may be dealt with in all respects as 
 if he had not been put upon his trial for such misdemeanor, (a) 
 
 Since the passing of the above statute, the doctrine of merger has 
 become of less importance. How far, apart from the statute, a con- 
 viction for a misdemeanor would be a bar to a conviction for a felony 
 upon the same facts, is a matter of some doubt. The question is much 
 discussed in B. v. Morris, ante, p 45 2 
 
 On trial for misdemeanor or felony no acquittal where only attempt 
 to commit offence proved? 
 
 Attempts to commit offences. — By the 14 & 15 Vict. C 100, S. 9, 4 ' if 
 on the trial of any person charged with any felony or misdemeanor 
 it shall appear to the jury upon the evidence that the defendant did 
 not complete the offence charged, but that he was guilty only of an 
 attempt to commit the same, such person shall not by reason thereof 
 be entitled to be acquitted, but the jury shall be at liberty to return 
 as their verdict that the defendant is not guilty of the felony or mis- 
 demeanor charged, but is guilty of an attempt to commit the same, 
 and thereupon such person shall be liable to be punished in the same 
 manner as if he had been convicted upon an indictment for attempt- 
 ing to commit the particular felony or misdemeanor charged in the 
 
 (z) R. v. Barnes, 35 L. J. M. C. 204 ; vol. ii. False Pretences, by which a person 
 
 L. R. 1 C. C. R. 45. R. v. Pritchard, L. & indicted for obtaining money by false pre- 
 
 C. 34. B. v. Webster, L. & C. 77. tences shall not be acquitted if the facts 
 
 (a) See 24 & 25 Vict. c. 96, s. 88, noticed amount to a larceny. 1 
 
 American Notes. 
 
 1 Most American States have similar pro- proceeded against is the lesser offence of the 
 visions, Bishop, i. ss. 789, 805. In many two. See Bishop, i. s. 1058(1) (2) (3). 
 States, convictions for a misdemeanor on an 3 In America if an act is in itself suffi- 
 indictment for felony are allowed. cient to produce an intended crime but the 
 
 2 In America it seems to be the rule that crime is prevented by some external circum- 
 ' ' where one offence is a necessary element in stance, it would seem that an offence has been 
 and constitutes an essential part of another committed. S. v. Wilson, 30 Conn. 500 ; P. 
 offence, and both are in fact but one trans- v. Lawton, 56 Barb. 126. 
 
 action, a conviction or acquittal of one is a * Most American States have similar pro- 
 
 bar to the prosecution of the other;" but it visions, Bishop, i. ss. 789, 805, 809. 
 would seem not to be so where the offence first
 
 chap, i.] Judgment on Record of Queens Bench. 63 
 
 said indictment ; and no person so tried as herein lastly mentioned 
 shall be liable to be afterwards prosecuted for an attempt to commit 
 the felony or misdemeanor for which he was so tried.' (I) 
 
 Under this clause the defendant can only be convicted of the at- 
 tempt to commit the very offence with which he is charged. Upon 
 an indictment for breaking and entering the house of M. Fowler, and 
 stealing therein eight spoons, one dress, &c, it appeared that the 
 prisoner broke and entered the house, but that all the articles men- 
 tioned in the indictment had been stolen from the house before the 
 time when the prisoner so broke and entered it; there were, however, 
 other goods of the prosecutor's in the house at that time ; and it was 
 held that the prisoner could not be convicted of an attempt under this 
 clause ; for such an attempt must be to do that which if successful 
 would amount to the felony or misdemeanor charged in the indict- 
 ment ; and here the attempt could not have succeeded, as the things 
 which the indictment charged the prisoner with stealing had been 
 previously removed, (c) 
 
 H. was indicted for rape, and W. for aiding and abetting ; both were 
 acquitted of felony, but H. was found guilty of attempting to commit 
 the rape, and W. of aiding H. in the attempt: held, that W. was pro- 
 perly convicted, (d) 
 
 Judgment on record of Queen's Bench may be pronounced during 
 the Sittings or Assizes. 
 
 The 11 Geo. 4 & 1 Will. 4, c. 70, s. 9, enacts, that upon all 
 trials for felonies or misdemeanors upon any record of the Court 
 of King's Bench, judgment may be pronounced during the sit- 
 tings or assizes by the judge before whom the verdict shall be 
 taken, as well upon the person who shall have suffered judgment by 
 
 (b) See R. v. Wyatt, 39 L. J. M. C. 83. ruled by R. v. Brown, 24 Q. B. D. 357, and 
 The above section probably would be held to R. v. Ring, 17 Cox, 491, and it would seem 
 apply to felonies at common law as well as to that R. v. M'Pherson also would not now he 
 felonies created by statute ; see the note upheld ; * but the judgment of the Court in 
 to R. v. Bain, L. & C. 129. R. v. Brown, is very unsatisfactory, and it 
 
 (c) R. v. M'Pherson, 1 D. & B. 197, 26 may be doubted how far it would be upheld 
 L. J. M. C. 134. The prisoner might have on reconsideration. See an article in the 
 been convicted on an indictment charging Law Quarterly Review, April, 1894. The 
 an attempt to steal the goods without speci- jury cannot convict under this section of 
 fying them (R. v. Johnson, 34 L. J. M. C. an attempt which is made felony by stat- 
 24). R. v. Collins, L. &C. 471, where it was ute, but only of an attempt which is a mis- 
 held that a man who put his hand into an demeatior, R. v. Connell, 6 Cox, 1 78. 
 empty pocket could not be convicted of an (d) R. v. Hapgood, 11 Cox, C. C. 471. 
 attempt to steal, has been expressly over- L. R. 1 C. C. R. 221. 
 
 American Note. 
 
 1 " Attempts" have been defined in Mr. fnl object done with the intent or purpose of 
 
 Bishop's book as follows: "Where the non- accomplishing it, a person taking that step 
 
 consummation of the intended criminal re- with that intent or purpose, and himself 
 
 suit is caused by an obstruction in the way, capable of doing every act on his part to 
 
 or by the want of the thing to be operated accomplish that object, cannot protect him- 
 
 upon, if such impediment is of a nature to self from responsibility by showing that by 
 
 be uuknown to the offender, who used what reason of some fact unknown to him at the 
 
 seemed appropriate means, the punishable time of his criminal attempt it could not lie 
 
 attempt is committed." s. 752 (2) or (3). fully carried into effect in the particular in- 
 
 " Whenever the laws make criminal one stance." Citing C. v. Jacobs, 9 Allen. 274. 
 step toward the accomplishment of an unlaw-
 
 64 General Provisions. [book i. 
 
 default or confession, upon the same record, as upon those who shall 
 be tried and convicted, whether such persons be present or not in 
 court, excepting only where the prosecution shall be by information 
 filed by leave of the Court of King's Bench, or such cases of in- 
 formations filed by his Majesty's attorney-general, wherein the 
 attorney-general shall pray that the judgment may be postponed ; 
 and the judgment so pronounced shall De indorsed upon the record 
 of nisi prius, and afterwards entered upon the record in court, and 
 shall be of the same force and effect as a judgment of the court, unless 
 the court shall, within six days after the commencement of the 
 ensuing term, grant a rule to show cause why a new trial should not 
 be had or the judgment amended ; and it shall be lawful for the judge 
 before whom the trial shall be had either to issue an immediate order 
 or warrant for committing the defendant in execution, or to respite 
 the execution of the judgment, upon such terms as he shall think fit, 
 until the sixth day of the ensuing term; and in case imprisonment 
 shall be part of the sentence, to order the period of imprisonment to 
 commence on the day on which the party shall be actually taken 
 to and confined in prison, (e) 
 
 Judgment of Death. 
 
 By 4 Geo. 4, c. 48, 'Whereas it is expedient that in all cases 
 of felony not within the benefit of clergy, except murder, the court 
 before which the offender or offenders shall be convicted shall be 
 authorized to abstain from pronouncing judgment of death, when- 
 ever such court shall be of opinion that under the particular cir- 
 cumstances of any case, the offender or offenders is or are a fit and 
 proper subject or fit and proper subjects to be recommended for the 
 royal mercy ; ' enacts, that from and after the passing of this Act, 
 whenever any persons shall be convicted of any felony, except murder, 
 and shall by law be excluded the benefit of clergy in respect thereof, 
 and the court before which such offender shall be convicted shall be 
 of opinion that, under the particular circumstances of the case, such 
 offender is a fit and proper subject to be recommended for the royal 
 mercy, it shall and may be lawful for such court, if it shall think fit 
 so to do, to direct the proper officer then being present in court to 
 require and ask, whereupon such officer shall require and ask if such 
 offender hath or knoweth anything to say, why judgment of death 
 should not be recorded against such offender; and in case such 
 offender shall not allege any matter or thing sufficient in law to 
 arrest or bar such judgment, the court shall and may and is hereby 
 authorized to abstain from pronouncing judgment of death upon such 
 offender ; and, instead of pronouncing such judgment, to order the same 
 to be entered of record, and thereupon such proper officer as afore- 
 said shall and may and is hereby authorized to enter judgment of death 
 on record against such offender, in the usual and accustomed form, and 
 in such and the same manner as is now used, and as if judgment of death 
 
 (c) See R. v. Cox, 4 C. & P. 538 ; R. v. the practice to be pursued upon a special 
 
 Lloyd, 4 B. & Ad. 135. See sec. 7 of the Act verdict in criminal cases, see R. v. Dudley, 
 
 as to trial at bar; R. v. Castro, L. R. 9 14 Q. B. D. 560. 
 Q. B. 350, 357, 43 L. J. Q. B. 105. As to
 
 chap, i.] Punishment for Certain Offences. 65 
 
 had actually been pronounced in open court against such offender, by 
 the court before which such offender shall have been convicted. 
 
 ' Benefit of clergy/ was originally claimed by clerks in holy orders 
 as an exemption from the jurisdiction of the ordinary lay tribunals. 
 Gradually it was claimed by all males able to read and write, and 
 finally it was extended to all persons. It exempted them from the 
 punishment of death. Subsequently many statutes were passed depriv- 
 ing persons committing certain offences of the benefit of clergy, and 
 finally the plea of benefit of clergy was abolished by 7 & 8 Geo. 4, c. 28, 
 s. 6. 1 
 
 By sec. 2. A record of every such judgment, so entered as aforesaid, 
 shall have the like effect to all intents and purposes, and be followed 
 by all the same consequences, as if such judgment had actually been 
 pronounced in open court, and the offender had been reprieved by 
 the court. 
 
 See 24 & 25 Vict. c. 100, s, 2, as to sentence of death for murder. 
 
 By 7 & 8 Geo. 4, c. 28, s. 7, no person convicted of felony shall 
 suffer death unless it be for some felony which was excluded from 
 the benefit of clergy before or on the first day of the present session of 
 Parliament, or which hath been or shall be made punishable with 
 death by some statute passed after that day. 
 
 The 1 Vict. c. 84, s. 1, recites the 1 Will. 4, c. 66 ; the 2 & 3 Will. 4, 
 c. 59, s. 19 ; 2 & 3 Will. 4, c. 123 ; 2 & 3 Will. 4, c. 125, s. 64 ; 5 & 6 
 Will. 4, c. 45, s. 12 ; 5 & 6 Will. 4, c. 51, s. 5 ; and enacts, ' that if any 
 person shall after the commencement of this Act be convicted of any 
 of the offences hereinbefore mentioned, such person shall not suffer 
 death, or have sentence of death awarded against him or her for the 
 same, but shall be liable, at the discretion of the court, to be trans- 
 ported (/) beyond the seas for life, or for any term not less than 
 seven years, or to be imprisoned for any term not exceeding four 
 years nor less than two years.' (g) 
 
 The Acts recited in sec. 2 of 1 Vict. c. 84, are repealed by the 
 8 & 9 Vict. c. 84, and 24 & 25 Vict. c. 95. 
 
 Punishment for certain Offences. 
 
 Punishment for felonies for which no special punishment is otherwise 
 provided. — By the 7 & 8 Geo. 4, c. 28, s. 8, 'every person convicted 
 of any felony, for which no punishment hath been or hereafter may 
 be specially provided, shall be deemed to be punishable under this 
 Act, and shall be liable, at the discretion of the Court, to be trans- 
 
 (/) Now penal servitude. 11 G. 4 & 1 W. 4, c. 66 ; 5 & 6 W. 4, c. 45, 
 
 (ff) This sect, is in part repealed by 24 & or 3 & 4 W. 4, c. 51, — also, except as to 
 
 25 Vict. c. 95. The 37 & 38 Viet. c. 35, re- Scotland, so much as relates to the punish- 
 
 peals this Act (1 Vict. c. 84), in part, namely ment of offences formerly unpunishable un- 
 
 — so much as relates to the punishment of der the Acts 2 & 3 "VV.4, c. 123, or 3 & 4 
 
 offences formerly punishable under the Acts W. 4, c. 44. 
 
 American Note. 
 
 1 "Benefit of clergy" has generally been abolished in America, but it seems not en- 
 tirely, see Bishop, Vol. i. s. 938.
 
 66 General Provisions. [book i. 
 
 ported (h) beyond the seas for the term of seven years, or to be impris- 
 oned for any term not exceeding two years.' (i) 
 
 By sec. 9, ' where any person shall be convicted of any offence 
 punishable under this Act, for which imprisonment may be awarded, 
 it shall be lawful for the Court to sentence the offender to be im- 
 prisoned, or to be imprisoned and kept to hard labour, in the common 
 gaol or house of correction, and also to direct that the offender shall 
 be kept in solitary confinement for the whole or any portion or por- 
 tions of such imprisonment, or of such imprisonment with hard labour, 
 as to the Court in its discretion shall seem meet.' 
 
 But by the 1 Vict. c. 90, s. 5, ' it shall not be lawful for any Court 
 to direct that any offender shall be kept in solitary confinement for 
 any longer period than one month at a time, or than three months in 
 the space of one year.' 
 
 Where a prisoner is sentenced to solitary confinement under these 
 clauses the sentence should specify the time at which such confine- 
 ment is to commence as well as the term for which it is to last. 
 
 As to hard labour, solitary confinement, whipping, &c, see post. 
 
 Punishments of misdemeanors. — With regard to the punishment of 
 misdemeanors, it may be laid down as a general rule that all those 
 offences less than felony, which exist at common law, and have not 
 been regulated by any particular statute, are within the discretion of 
 the Court to punish. (/) Fine and imprisonment appear to be the 
 most ordinary judgments in cases of misdemeanor ; but a fine cannot 
 in general be imposed on a married woman, as she has nothing to pay 
 the fine with. (A) The pillory was also a common punishment in 
 these cases ; but it was abolished by the 1 Vict. c. 23 and the 56 Geo. 
 3, c. 128 ; which by sec. 2 empowers the Court to pass such sentence 
 of fine or imprisonment, or of both, in lieu of a sentence of pillory, as 
 to the Court shall seem proper. Whipping also was ordinarily 
 awarded in former times, but of later years it seems never to have 
 been adjudged. In all cases of misdemeanor, in addition to any 
 punishment that may be awarded, the Court may require the defend- 
 ant to find sureties to keep the peace and be of good behaviour, (I) 
 and even a married woman may be required to find such sureties, (in) 
 But she cannot herself be bound by recognizance, because being a 
 feme covert she cannot enter into it. (n) 
 
 Punishment after previous Conviction, and of form of Indictment 
 and Proceeding thereon. 
 
 Larceny after a conviction for felony. — By 24 & 25 Vict. C. 96 (en- 
 titled an Act to consolidate the Statute Law of England and Ireland 
 
 (h) Now penal servitude for not less than (/) R. v. Dunn, 12 Q. B. 1026. R. v. 
 
 three years. Hart, 30 How. St. Tr. 1131 ; and see the 
 
 (i) There was also a power to order a clause in the Acts of 1861. 
 male to be whipped, but this has been re- (m) R. v. Thomas, supra. 
 
 pealed by the Statute Law Revision Act, (n) Lee v. Lady Baltinglas, Styles, 475. 
 
 1888. Bennet v. Watson, 3 M. ct S. 1. Elsy v. 
 
 ( ;') 1 Ch. Cr. L. 710. R. v. Thomas, C. Mawdit, Styles, 226. Anonymous, Styles, 
 
 T. H. 278. 321. In 1 Ch. C. L. 100, the reason given 
 
 (k) R. v. Thomas, supra. Since the is that the recognizance of a married woman 
 
 Divorce Acts, Married Women Property cannot be estreated. 
 Acts, this does not always apply.
 
 chap. i.J Previous Conviction. * 67 
 
 relating to larceny and other similar offences). Sec. 7. ' Whosoever 
 shall commit the offence of simple larceny after a previous conviction 
 for felony, whether such conviction shall have taken place upon an in- 
 dictment, or under the provisions of the Act 18 & 19 Vict. c. 126, shall 
 be liable, at the discretion of the Court, to be kept in penal servitude 
 for any term not exceeding ten years and not less than three years, (o) 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement, and, if 
 a male under the age of sixteen years, with or without whipping.' (p) 
 
 Larceny after conviction of an indictable misdemeanor. — Sec. 8. 
 ' Whosoever shall commit the offence of simple larceny, or any offence 
 hereby made punishable like simple larceny (q) after having been pre- 
 viously convicted of any indictable misdemeanor punishable under 
 this Act, shall be liable, at the discretion of the Court, to be kept in 
 penal servitude for any term not exceeding seven years and not less 
 than three years, — or to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement, and, if a male under the age of sixteen years, with or 
 without whipping.' (r) 
 
 Larceny after two summary convictions. — Sec. 9. ' Whosoever 
 shall commit the offence of simple larceny, or any offence hereby 
 made punishable like simple larceny, after having been twice summarily 
 convicted of any of the offences punishable upon summary conviction, 
 under the provisions contained in the Act of the session held in the 
 seventh and eighth years of King George the Fourth, chapter twenty- 
 nine, or the Act of the same session, chapter thirty, or the Act of 
 the ninth year of King George the Fourth, chapter fifty-five, or the 
 Act of the same year, chapter fifty-six, or the Act of the session held 
 in the tenth and eleventh years of Queen Victoria, chapter eighty- 
 two, or the Act of the session held in the eleventh and twelfth years 
 of Queen Victoria, chapter fifty-nine, or in sections three, four, fire, 
 and six of the Act of the session held in the fourteenth and fifteenth 
 years of Queen Victoria, chapter ninety-ttoo, or in this Act or the Act 
 of this session intituled an Act to consolidate and amend the statute 
 law of England and Ireland relating to malicious injuries to property 
 (whether each of the convictions shall have been in respect of an 
 offence of the same description or not, and whether such convictions 
 
 (o) See 27 & 28 Vict. c. 47, s. 2. As of larceny after a previous conviction for 
 
 to directing that the prisoner be subject to felony, but no further, and they are still in 
 
 the supervision of the police, see post, p. 69. force except in that case, and certain offences 
 
 (p) This clause is taken from the 7 & 8 relating to the coin. By the 18 & IP Vict. 
 
 Geo. 4, c. 28, s. 11 ; 9 Geo. 4, c. 54, s. 21 c. 126, justices of the peace may convict per- 
 
 (I.), which rendered any person convicted sons guilty of larceny, &c, summarily, and 
 
 of any felony (not capital) liable to trans- this clause renders persons so convicted, who 
 
 portation for life; and the 16 & 17 Vict, afterwards are guilty <>f larceny, liable to the 
 
 c. 99, s. 12 (amended by 27 & 28 Vict, same punishment as if they had been pre- 
 
 c. 47, s. 2, 34 & 35 Vict. c. 112), which viously convicted upon an indictment for 
 
 provided that no person should be liable felony. As to hard labour, whipping, &c. 
 
 to be transported by reason only of a con- see post. 
 
 viction for larceny after a previous convic- {q) That is by ss. 31, 32, 33, and 36, and 
 
 tion for felony, but that every such person does not apply to a conviction under s. 88 
 
 so convicted might be punished by penal for false pretences. R. v. Horn, 15 Cox, 
 
 servitude for not more than ten years, &c. C. C. 205. 
 
 The 7 & 8 Geo. 4, c. 28, s. 11, and 9 Geo. 4, (r) This clause is new. See R. v. Gar- 
 
 c. 54, s. 21, were, therefore, repealed by that land, 11 Cox, C. C. 222. 
 Act so far as they relate to the punishment
 
 68 General Provisions. [book i. 
 
 or either of them shall have been or shall be before or after the 
 passing of this Act), shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the Court, to be kept in 
 penal servitude for any term not exceeding seven years and not less 
 than three years — or to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without soli- 
 tary confinement, and, if a male under the age of sixteen years, with 
 or without whipping.' (s) 
 
 Form of indictment for a subsequent offence, (t) — Sec. 116. 'In 
 any indictment for any offence punishable under this Act, and com- 
 mitted after a previous conviction or convictions for any felony, 
 misdemeanor, or offence or offences punishable upon summary con- 
 viction, it shall be sufficient, after charging the subsequent offence, to 
 state that the offender was at a certain time and place, or at certain 
 times and places convicted of felony, or of an indictable misdemeanor, 
 or of an offence or offences punishable upon summary conviction 
 (as the case may be), without otherwise describing the previous 
 felony, misdemeanor, offence or offences ; and a certificate containing 
 the substance and effect only (omitting the formal part) of the indict- 
 ment and conviction for the previous felony or misdemeanor, or a 
 copy of any such summary conviction, purporting to be signed by 
 the clerk of the Court or other officer having the custody of the 
 records of the Court where the offender was first convicted, or to 
 which such summary conviction shall have been returned, or by the 
 deputy of such clerk or officer (for which certificate or copy a fee 
 of five shillings and no more shall be demanded or taken), shall, 
 upon proof of the identity of the person of the offender, be sufficient 
 evidence of such conviction, without proof of the signature or official 
 character of the person appearing to have signed the same ; and the 
 proceedings upon any indictment for committing any offence after a 
 previous conviction or convictions shall be as follows ; (that is to say), 
 the offender shall, in the first instance, be arraigned (u) upon so much 
 only of the indictment as charges the subsequent offence, and if he 
 plead not guilty, or if the Court order a plea of not guilty to be entered 
 on his behalf, the jury shall be charged, (v) in the first instance, to 
 inquire concerning such subsequent offence only ; and if they find him 
 guilty, or if on arraignment he plead guilty, he shall then, and not 
 before, be ashed whether he had been previously convicted as alleged in 
 the indictment, and if he answer that he had been so previously con- 
 victed, the Court may proceed to sentence him accordingly , but if he 
 deny that he had been so previously convicted, or stand mute of malice, 
 or will not answer directly to such question, the jury shall then be 
 charged to inquire concerning such previous conviction, or convictions, 
 and in such case it shall not be necessary to swear the jury again, but 
 the oath already taken by them shall for all purposes be dccnied to 
 
 (s) This clause is taken from the 12 & (u) See R. v. Martin, 39 L. J. M. C. 31 ; 
 
 13 Vict. c. 11, s. 3, and extended so as to R. v. Fox, 10 Cox, C. C. 502. As to the 
 
 include persons who have been twice sum- former practice, see Anonymous, 5 Cox, C. C. 
 
 marily convicted under the 14 & 15 Vict. 26S. R. v. Key, 2 Den. C. C. 347, 3 C. & 
 
 c. 92," ss. 3, 4, 5, & 6 (I.), or the Malicious K. 371 ; R. v. Shuttleworth, 2 Den. C. C. 
 
 Injuries Act of this session, or this Act. 351, 3 0. & K. 375. 
 
 (f) See post. (v) See former Act, 6 & 7 Will. 4, c. 111.
 
 chap. I.] Previous Conviction. 69 
 
 extend to such last-mentioned inquiry: Provided, that if upon the 
 trial of any person for any such subsequent offence such person 
 shall give evidence of his good character, it shall be lawful for the 
 prosecutor, in answer thereto, to give evidence of the conviction (w) 
 of such person for the previous offence or offences before such verdict 
 of guilty shall be returned, and the jury shall inquire concerning 
 such previous conviction or convictions at the same time that they 
 inquire concerning such subsequent offence.' (x) 
 
 Prevention of Crimes Act. — By 34 & 35 Vict. c. 112 (The Preven- 
 tion of Crimes Act, 1871), s. 9, the rules contained in this 116th 
 section in relation to the form of and the proceedings upon an 
 indictment for any offence punishable under that Act committed 
 after previous conviction, shall, with the necessary variations, apply 
 to any indictment for committing a crime as defined by this Act (y) 
 after previous conviction for a crime, whether the crime charged 
 in such indictment, or the crime to which such previous convic- 
 tion relates, be or be not punishable under the said Act of the 
 24 & 25 Vict. c. 96. 
 
 Direction that prisoner be under supervision of police. — By sec. 8, 
 where any person is convicted on indictment of a crime, (y) and a 
 previous conviction of a crime is proved against him, the Court hav- 
 ing cognizance of such indictment may, in addition to any other 
 punishment which it may award to him, direct that he is to be 
 subject to the supervision of the police for a period of seven years, 
 or of such less period as the Court may direct, commencing immedi- 
 ately after the expiration of the sentence passed on him for the last 
 of such crimes. 
 
 Interpretation clause. — By sec. 20, the expression "crime" means 
 
 (w) As to proof of previous convictions, 4, c. 28, s. 11, which had not in it the words 
 
 where proceedings are taken against a per- 'after charging the subsequent offence,' and 
 
 son for receiving goods knowing them to be is, therefore, no authority on the present 
 
 stolen, and the goods are found in his pos- clause, in which those words are inserted to 
 
 session, see 34 & 35 Vict. c. 112, s. 19, render the course held sufficient in R. v. 
 
 noticed Vol. 2. Hilton unlawful. Whenever a statute in- 
 
 (x) This clause is framed from the 7 & creases the punishment of an offender on a 
 8 Geo. 4, c. 28, s. 11 ; 9 Geo. 4, c. 54, s. 21 subsequent conviction, and gives no mode 
 (I.) ; 6 & 7 Will. 4, c. Ill ; 12 & 13 Vict, of stating the former conviction, the former 
 c. 11, s. 4 ; and 14 & 15 Vict. c. 19, ss. 2, 9. indictment, &c, must be set out at length, 
 See post, in this vol., as to the mode of pro- as was the case in Mint prosecutions before 
 ceeding, &c. , on the similar clause in the the present Coin Act ; but where a statute 
 Coin Act. The words ' after charging the gives a new form of stating the former con- 
 subsequent offence ' were inserted in order viction, that form must be strictly pursued ; 
 to render it absolutely necessary always to for no rule is more thoroughly settled than 
 charge the subsequent offence or offences that in the execution of any power created 
 first in the indictment, and after so doing by any Act of Parliament, any circumstance 
 to allege the previous conviction or convic- required by the Act, however unessential 
 tions. This was the invariable practice on and unimportant otherwise, must be ob- 
 the Oxford Circuit, and the Select Com- served, and can only be satisfied by a strictly 
 mittee of the Commons were clear that it literal and precise performance, R. v. Aus- 
 ought to be universally followed, so that the trey, 6 M. & S. 319 ; and to suppose that 
 previous conviction should not be men- this clause, which makes it sufficient to 
 tioned, even by accident, before a verdict of allege the former conviction ' after charging 
 guilty of the subsequent offence had been the subsequent offence ' can be satisfied by 
 delivered. Mr. Davis (Cr. L. 113), how- alleging it before charging the subsequent 
 ever, says, ' It seems to be immaterial offence, is manifestly erroneous. See also 
 whether the prior conviction be alleged be- my note, Greaves, Crim. Acts, 201, 2nd Ed. 
 fore or after the substantive charge,' for — C. S. G. 
 which he cites R. v. Hilton, Bell, C. C. 20. (y) See s. 20, infra. 
 Now that case was decided on the 7 & 8 Geo.
 
 70 General Provisions. [book i. 
 
 in England and Ireland, any felony, or the offence of uttering false 
 or counterfeit coin, or of possessing counterfeit gold or silver coin, 
 or the offence of obtaining goods or money by false pretences, or the 
 offence of conspiracy to defraud, or any misdemeanor under the 
 24 & 25 Vict. c. 96, s. 58 (vol. 2) ; and in Scotland, any of the pleas 
 of the Crown, any theft which, in respect of any aggravation, or of 
 the amount in value of the money, goods or thing stolen, may be 
 punished with penal servitude, any forgery, and any uttering of any 
 forged writing, falsehood, fraud and wilful imposition, uttering base 
 coin, or the possession of such coin with intent to utter the same. 
 The expression " offence," means any act or omission which is not a 
 crime as defined by this Act, and is punishable on indictment or 
 summary conviction. 
 
 Punishment for felony after previous conviction, &c. — The 7 & 8 
 Geo. 4, c. 28, s. 11, (z) reciting that it was expedient to provide for 
 the more exemplary punishment of offenders who commit felony 
 after a previous conviction for felony, whether such conviction shall 
 have taken place before or after the commencement of this Act, 
 enacts, ' that if any person shall be convicted of any felony, not pun- 
 ishable with death, committed after a previous conviction for felony, 
 such person shall, on such subsequent conviction, be liable, at the 
 discretion of the court, to be transported beyond the seas for life, or 
 for any term not less than seven years (a) or to be imprisoned for any 
 term not exceeding four years ; (b) and in an indictment for any such 
 felony committed after a previous conviction for felony, it shall be 
 sufficient to state that the offender was, at a certain time and place, 
 convicted of felony, without otherwise describing the previous felony ; 
 and a certificate containing the substance and effect only (omitting 
 the formal part) of the indictment and conviction for the previous 
 felony, purporting to be signed by the clerk of the court, or other 
 officer having the custody of the records of the court, where the 
 offender was first convicted, or by the deputy of such clerk or officer, 
 (for which certificate a fee of six shillings and eight pence, and no 
 more, shall be demanded or taken), shall, upon proof of the identity 
 of the person of the offender, be sufficient evidence of the first convic- 
 tion, without proof of the signature or official character of the person 
 appearing to have signed the same.' (c) 
 
 Any number of previous convictions may be charged. — An indict- 
 ment after charging a larceny from the person, alleged two previous 
 convictions of the prisoner for felony, one after the other, and upon a 
 case reserved, it was held that this was right. They do not vary the 
 offence ; they only affect the quantum of punishment. A difficulty 
 as to the proof of identity might occur as to one conviction, and not 
 as to another, and it is also very important that the judge should 
 
 (2) As to when this enactment applies, hard labour, and with or without solitary 
 
 see ante, p. 67, note (??). confinement for any period (1 Vict. c. 90, 
 
 (a) Now penal servitude, see post. s. 5) not exceeding one month at a time, or 
 
 (b) The power to order whipping under three months in the space of one year, ante, 
 this section has been repealed by the Statute p. 65 ; as to police supervision, see 34 & 35 
 Law Revision Act, 1888. By sect. 8, the Vict. c. 112, s. 8, supra. 
 imprisonment may be in the common gaol (c) See 34 & 35 Vict. c. 112, s. 9, ante, 
 or house of correction, and with or without p. 69.
 
 chap, i.] Previous Conviction. 71 
 
 know how many times the prisoner has been convicted, (d) A count 
 alleged that at the General Gaol Delivery at Newgate E. Hilton was 
 convicted of felony, and that the said E. Hilton ' being so convicted 
 of felony as aforesaid,' on, &c, stole a purse containing money. The 
 prisoner was arraigned in the first instance on that part of the count 
 which charged the stealing the purse, and the jury having found a 
 verdict of guilty, it was objected that she could not be arraigned on 
 that part of the count charging the former conviction, but the objec- 
 tion was overruled, and she was arraigned on the former conviction, 
 pleaded not guilty, and the jury were charged to inquire into the 
 former conviction, and found that she had been so previously con- 
 victed ; and it was held, upon a case reserved, that the conviction 
 was right ; for it could make no difference whether the statement of 
 the former conviction is at the beginnning or end of the indictment, (e) 
 
 Form of the certificate. (/) — A certificate stated that the prisoners 
 were in due form of law ' tried and convicted ' of a felony, the particu- 
 lars of which were set out; and Cresswell, J., held, under 7 & 8 Geo. 4, 
 c. 28, s. 11, that the certificate was insufficient, as there was no state- 
 ment in the certificate that any judgment had been given on that 
 conviction, and the judgment might have been arrested, (g) The in- 
 dictment alleged that the prisoners were ' duly convicted of felony,' 
 without any further allegation as to the judgment, and Cresswell, J., 
 held that it was sufficient, (h) 
 
 Proof of identity. — In order to prove that the prisoner is the same 
 person that was before convicted, it is not necessary to call any 
 witness that was present at the former trial ; it is sufficient to prove 
 that he was the person who underwent the sentence mentioned in 
 the certificate. In order to prove a previous conviction a certificate 
 was put in, stating that at the sessions for the borough of Newbury, 
 held on the 31st October, 1 Vict., the prisoner had been convicted of 
 stealing cotton-prints, and sentenced to be imprisoned for four months. 
 The governor of Reading gaol proved that the prisoner was in his cus- 
 tody before those sessions ; that he sent him to Newbury at that time, 
 and received him back with an order from the Newbury sessions, and 
 that he remained in his custody for four months under that sentence; 
 and this was held sufficient, (i) But where a certificate stated that 
 G. Lloyd was convicted of felony at the Herefordshire sessions for 
 July, 1841, and sentenced to hard labour for a month, and the porter 
 of the gaol proved that previous to those sessions the prisoner was in 
 his custody, and went up, with others, for trial, and returned the 
 same evening to prison, where he continued for one month from the 
 day of the trial ; Maule, J., held that there was no evidence that 
 
 (d) R. v. Clark, Dears. C. C. 398, 3 C. & (g) R. v. Ackroyd, 1 C. & K. 158 ; R. v. 
 K. 367. Stonnell, 1 Cox, C. C. 142. 
 
 (e) R. v. Hilton, Bell, C. C. 20, decided (h) R. v. Spencer, 1 C. & K. 159. But 
 upon the 7 & 8 Geo. 4, c. 28, s. 11. It does see 24 & 25 Vict. c. 99, the Act relating to 
 not appear that the jury in this case were coin, s. 37, post. 
 
 sworn to inquire into the previous convic- (i) R. v. Crofts, 9 C. & P. 219. Sed 
 
 tion at all ; a clear irregularity. See note quaere, whether this evidence showed that 
 
 (x), ante, p. 69, that this case is no author- the prisoner was imprisoned for the same 
 
 ity under the 24 & 25 Vict. c. 96, s. 116. felony as that mentioned in the certificate? 
 
 (./') See 34 & 35 Vict. c. 112, s. 18, It showed, indeed, that he was in gaol for 
 
 noticed vol. iii. Evidence. some offence, but it might be another felony 
 
 or a misdemeanor. C. S. G.
 
 72 General Provisions. [book i. 
 
 the prisoner was the person who was convicted of the particular 
 offence mentioned in the certificate ; the offence for which the pris- 
 oner suffered the punishment mentioned by the witness might have 
 beeD a misdemeanor, (j) And where, a certificate having been put in, 
 a gaoler, who was called to prove an admission made by the prisoner, 
 said, ' I asked the prisoner, " How many years ago was it that you 
 were here before ? " He said, " It was a many years ago. " I then 
 said, "You were then convicted of felony;" and the prisoner said, 
 " Yes, I was." ' It was objected, first, that some one ought to have 
 been called who was present when the prisoner was previously tried ; 
 and, secondly, that this admission was not sufficient, as it did not 
 show of what felony the prisoner was convicted, but only that he had 
 been convicted of a felony. Bosancpuet, J., ' I think an admission 
 of the prisoner is sufficient ; but I think this evidence is not suffi- 
 cient; it must be proved to be the same felony as that mentioned in 
 the certificate.' (k) Where, however, W. Levy had been summarily 
 convicted at Leeds under the Summary Larceny Act, 18 & 19 Vict, 
 c. 126, and a conviction before the justices of Leeds was put in, and 
 the governor of Leeds gaol produced a commitment signed by the 
 same justices and otherwise agreeing in every particular with the con- 
 viction, and proved that the prisoner had undergone the sentence in 
 pursuance of the terms of the commitment ; it was held that this was 
 sufficient evidence of the identity of the prisoner. (/) 
 
 If a prisoner seeks to show that he has a good character, the previ- 
 ous conviction may be proved. — Whether a prisoner calls witnesses 
 to his character, or cross-examines the witnesses as to his character, 
 he ' gives evidence ' of his character within the meaning of the 24 & 
 25 Vict. c. 96, s. 116, and the previous conviction may be proved in 
 the first instance, (m) Upon the trial of an indictment charging 
 a previous conviction, a witness for the prosecution, on cross-examina- 
 tion by the counsel for the prisoner, stated that he had known the 
 prisoner for six or seven years last past, and that during that time 
 the prisoner had borne a good character for honesty. The counsel 
 for the prosecution thereupon claimed, under the 14 & 15 Vict. c. 19, 
 s. 9, (n) to give evidence of the previous conviction of the prisoner 
 in 1838, as mentioned in the indictment. This evidence was objected 
 to ; first, because the evidence of the good character of the prisoner 
 was confined to the period between 1841 and 1851, and, there- 
 fore, evidence of the prisoner's conviction in 1838 was no answer 
 thereto ; secondly, because the witness, being a witness for the prose- 
 cution only, the prisoner did not, by the answers of the witness on 
 cross-examination, give evidence of his (the prisoner's) good character 
 within the meaning of the statute. But the Court overruled the 
 objections ; and, upon a case reserved, the judges were unanimously 
 of opinion, that the natural and necessary meaning to be put upon 
 the words of the statute was, that if the prisoner, either by himself or 
 his counsel, attempts to prove a good character for honesty, either 
 
 ( /) R. v. Lloyd, MSS. C. S. G. 1 Cox, (Z) R. v. Lew, 8 Cox, C. C. 73, Byles, 
 
 C. C. 51. J., S. C. as R. v. Leng, 1 F. & F. 77. 
 
 \k) R. v. J. and T. Goodman, Stafford (m) R. v. Gadbury, 8 C. & P. 676. 
 
 Sum. Ass. 1S30, MSS. C. S. G., a case de- \n) Repealed bv the 24 & 25 Vict. c. 95. 
 cidedon 6 &7 Will. 4, c. 111.
 
 chap, i.] Penal Servitude. 73 
 
 directly by calling witnesses, or indirectly by cross-examining the 
 witnesses for the Crown, it is lawful for the prosecution to give in 
 evidence the previous conviction for the consideration of the jury, (o) 
 
 In the previous case, on the prisoner's counsel saying, ' Suppose 
 that a witness for the prosecution is asked by the prisoner's counsel 
 some question which has no reference to character, and he should 
 happen to say something favourable to the prisoner's character, could 
 the prisoner, under such circumstances, be said to give evidence as to 
 his character ? ' Lord Campbell, C. J., observed, ' That would raise a 
 different question ; I should not, in such a case, admit evidence of a 
 previous conviction.' (p) It is obvious, that where the prisoner gives 
 evidence of his good character, the proper course is for the prosecutor 
 to require the officer of the court to charge the jury with the previous 
 conviction, and then to put in the certificate and prove the identity of 
 the prisoner in the usual way. • If the prisoner gives such evidence 
 during the course of the case for the prosecution, then this should be 
 done before the case for the prosecution closes ; but if the evidence 
 of character is given after the case for the prosecution closes, then 
 the previous conviction must be proved in reply. 
 
 An indictment for a subsequent felony need not conclude 'against 
 the form of the statute,' as the charge of the former conviction is 
 merely in the nature of a suggestion in order to warrant the higher 
 punishment, (q) 
 
 As to the mode of proving a previous conviction, see 33 & 34 Vict. 
 c. 112, s. 18, and Vol. 3, Evidence. 
 
 As to special offences, where a person has been twice convicted 
 of crime, see 34 & 35 Vict. c. 112, s. 7, post, p. 77. 
 
 For enactment as to the children of a woman convicted of a crime, 
 when a previous conviction is proved against her, see post, 79. 
 
 Penal Servitude. 
 
 An opinion at one time prevailed that it was expedient to award to 
 certain offences fixed terms of transportation or imprisonment, and 
 many statutes were passed containing such fixed terms. That opinion 
 afterwards was abandoned, and in consequence the 9 & 10 Vict. c. 24, 
 s. 1, was passed, which, after reciting that ' in certain cases of felony 
 the Court is not empowered by law to award sentence of transporta- 
 tion for a less period than the term of the offender's life or some long 
 term of years, or sentence of imprisonment for any shorter term than 
 two years ; but it is desirable that some such offenders should suffer 
 transportation or imprisonment for a shorter period respectively, at the 
 discretion of the Court before which they are convicted,' enacts that 
 'in all cases where the Court is now (26th June, 1846) empowered or 
 required to award a sentence of transportation exceeding seven years, 
 it shall be lawful for such Court, at its discretion, to award a sentence 
 of transportation for a term of years not less than seven years, or to 
 
 (o) R. v. Shrimpton, 2 Den. C. C. 319, (q) R, v. Blea, 8 C. & P. 735, decided 
 
 3 C. & K. 373. before 14 & 15 Vict. c. 100, s. 24, which, see 
 
 (p) Ibid. ante, p. 36.
 
 74 General Provisions. [book i. 
 
 award such sentence of imprisonment for any period not exceeding 
 two years, with or without hard labour, as shall to the Court in its 
 discretion appear just under all the circumstances.' 
 
 By the 16 & 17 Vict. c. 99, penal servitude was introduced in lieu of 
 transportation in certain cases and under certain regulations. 
 
 By sec. 6, every person who under this Act shall be sentenced or 
 ordered to be kept in penal servitude may, during the term of the 
 sentence or order, be confined in any such prison or place of confine- 
 ment in any part of the United Kingdom, or in any river, port, or 
 harbour of the United Kingdom, in which persons under sentence or 
 order of transportation, may now by law be confined, or in any other 
 prison in the United Kingdom, or in any part of Her Majesty's domin- 
 ions beyond the seas, or in any port or harbour thereof, as one of Her 
 Majesty's principal secretaries of state may from time to time direct, 
 and such person may during such term be kept to hard labour, and 
 otherwise dealt with in all respects as persons sentenced to transpor- 
 tation may now by law be dealt with while so confined. 
 
 Sees. 1, 2, 3, and 4 of 16 & 17 Vict. c. 99, were repealed by the 
 20 & 21 Vict. c. 3, s. 1, and by sec. 2 of this Act, ' no person shall be 
 sentenced to transportation ; and any person who [if the 16 & 17 Vict. 
 c. 99, and 20 & 21 Vict. c. 3, had not been passed] might have been 
 sentenced to transportation, shall be liable to be sentenced to be kept 
 in penal servitude for a term of the same duration as the term of 
 transportation to which such person would have been liable if the said 
 [Acts] had not been passed ; and in every case where at the discretion 
 of the Court one of any two or more terms of transportation might 
 have been awarded, the Court shall have the like discretion to award 
 one of any two or more of the terms of penal servitude which are 
 hereby authorised to be awarded instead of such terms of transporta- 
 tion : Provided always, that any person who might at the discretion of 
 the Court have been sentenced either to transportation for any term 
 or to any period of imprisonment, shall be liable at the discretion of 
 the Court to be sentenced either to penal servitude for the same term 
 or to the same period of imprisonment ; and in any case in which 
 before the passing of the [16 & 17 Vict. c. 99] sentence of seven 
 years' transportation might have been passed, it shall be lawful for 
 the Court at its discretion to pass a sentence of penal servitude of not 
 less than three years.' 
 
 By sec. 6, where in any enactment now in force the expression 
 ' any crime punishable with transportation,' or ' any crime punishable 
 by law with transportation,' or any expression of the like import, is 
 used, the enactment shall be construed and take effect as applicable 
 also to any crime punishable with penal servitude. 
 
 At one time by 27 & 28 Vict. c. 47, s. 2, where any person was 
 convicted on indictment of any crime or offence punishable with penal 
 servitude, after having been previously convicted of felony, the least 
 sentence of penal servitude that could be awarded was a period of 
 seven years, (r) and it was then held that the indictment must charge 
 the previous conviction, (s) That section has, however, been repealed 
 
 (r) R. v. Deane, 2 Q. B. D. 305 ; 13 Cox, (s) R. v. Willis, 41 L. J. M. C.104 ; R. v. 
 
 C. C. 386. Summers, L. R. 1 C. C. R. 182.
 
 chap, i.] Penal Servitude. 75 
 
 by 42 & 43 Vict. c. 55, s. 1, and it would now seem that in such a 
 case the prisoner might be sentenced to three years penal servitude, (t) 
 
 Forfeiture of licence. — By the 27 & 28 Vict. c. 47, sec. 4. If any 
 holder of a licence granted in the form in the schedule is convicted, 
 either by verdict of a jury or upon his own confession, of any offence 
 for which he is indicted, his licence shall be forthwith forfeited by 
 virtue of such conviction, (u) 
 
 Sec. 7. When the holder of a licence is convicted of an offence pun- 
 ishable summarily under this or any other Act, a certificate thereof is 
 to be forwarded to a secretary of state in Great Britain or to the lord 
 lieutenant in Ireland, and thereupon the licence may be revoked. 
 
 Sec. 9. 'Where any licence granted in the form set forth in the 
 said Schedule (A.) is forfeited by a conviction of any indictable 
 offence, (v) or is revoked in pursuance of a summary conviction under 
 this Act or any other Act of Parliament, the person whose licence is 
 forfeited or revoked shall, after undergoing any other punishment to 
 which he may be sentenced for the offence in consequence of which 
 his licence is forfeited or revoked, further undergo a term of penal 
 servitude equal to the portion of his term of penal servitude that 
 remained unexpired at the time of his licence being granted, and 
 shall, for the purpose of his undergoing such last mentioned punish- 
 ment, be removed from the prison of any county, borough, or place in 
 which he may be confined, to any prison in which convicts under 
 sentence of penal servitude may lawfully be confined, by warrant 
 under the hand and seal of any justice of the peace of the said 
 county, borough, or place, and shall be liable to be there dealt with 
 in all respects as if such term of penal servitude had formed part 
 of his original sentence.' 
 
 Sec. 10 empowers Her Majesty or the lord lieutenant of Ireland to 
 grant licences in any other form than that in the schedule and con- 
 taining different conditions ; and such licences shall be revokable at 
 pleasure by the authority by which they were granted ; but a breach 
 of their conditions is not to subject any holder of a licence to sum- 
 mary conviction. 
 
 By the Prevention of Crimes Act, 1871, 34 & 35 Vict. c. 112, s. 3 
 et seq., the Penal Servitude Acts are amended. 
 
 Penalty on holders of licences getting their livelihood by dishonest 
 means. - — By sec. 3, it is enacted, Any constable in any police district 
 may, if authorised so to do in writing by the chief officer of police in 
 that district, without warrant take into custody any convict who is 
 the holder of a licence granted under the Penal Servitude Acts, if it 
 appears to such constable that such convict is getting his livelihood 
 by dishonest means, and may bring him before a court of summary 
 jurisdiction for adjudication. If it appears from the facts proved 
 before such court that there are reasonable grounds for believing that 
 the convict so brought before it is getting his livelihood by dishonest 
 means, such convict shall be deemed to be guilty of an offence against 
 this Act, and his licence shall be forfeited. 
 
 Penalty on breach of conditions of licence. — By sec. 4, where in 
 
 (t) See 54 & 55 Vict. c. 69, s. 1. (v) See 54 & 55 Vict. c. 69, s. 3. 
 
 (u) The rest of the section is repealed by 
 the 34 & 35 Vict. c. 112, s. 21.
 
 76 General Provisions. [book i. 
 
 any licence granted under the Penal Servitude Acts, any conditions 
 different from or in addition to those contained in Schedule A. of the 
 Penal Servitude Act, 1864, are inserted, the holder of such licence, if 
 he breaks any such conditions by an act that is not of itself punish- 
 able, either upon indictment or upon summary conviction, shall be 
 deemed guilty of an offence against this Act, and shall be liable to 
 imprisonment for any period not exceeding three months, with or 
 without hard labour. A copy of any conditions annexed to any 
 licence granted under the Penal Servitude Acts, other than the con- 
 ditions contained in Schedule A. of the Penal Servitude Act, 1864, 
 shall be laid before both Houses of Parliament within twenty-one 
 days after the making thereof, if Parliament be then sitting, or if not, 
 then within fourteen days after the commencement of the next session 
 of Parliament. 
 
 Convict holding licence to notify residence to police. — By sec. 5, 
 every holder of a licence granted under the Penal Servitude Acts who 
 is at large in Great Britain or Ireland shall notify the place of his 
 residence to the chief officer of police of the district in which his resi- 
 dence is situated, and shall, whenever he changes such residence 
 within the same police district, notify such change to the chief officer 
 of police of that district, and whenever he is about to leave a police 
 district he shall notify such his intention to the chief officer of police 
 of that district, stating the place to which he is going, and, as far as 
 is practicable, his address at that place, and whenever he arrives in 
 any police district he shall forthwith notify his place of residence to 
 the chief officer of police of such last-mentioned district; (w) more- 
 over, every male holder of such a licence as aforesaid shall, once in 
 each month, report himself at such time as may be prescribed by the 
 chief officer of police of the district in which such holder may be, 
 either to such chief officer himself, or to such other person as that 
 officer may direct, and such report may, according as such chief officer 
 directs, be required to be made personally or by letter, (x) 
 
 (w) These words are introduced by 54 & police, shall be made to some other per- 
 
 55 Vict. c. 69, s. 4. sou, shall extend to authorise him to direct 
 
 (,<•) By the Prevention of Crimes Act, such reports to be made to the constable or 
 
 1879 (42 & 43 Vict. c. 55), s. 2. 'Any person in charge of any particular police sta- 
 
 holder of a licence required, under s. 5, and tion or office without naming the individual 
 
 any person subject to the supervision of the person. Any appointment, direction, or 
 
 police required, by s\ 8 of the Prevention of authority purporting to be signed by the 
 
 Crimes Act, 1871 (34 & 35 Vict. c. 112), to chief officer of police, and to have been made 
 
 notify his residence or any change of his or given for the purposes of this act or of ss. 
 
 residence to a chief officer of police, shall 5 & 8 of the Prevention of Crimes Act, 1871, 
 
 comply with such requirement by personally or one of them, shall be evidence until the 
 
 presenting himself and declaring his place contrary is proved, that the appointment, 
 
 of residence to the constable or person who direction, or authority thereby made or given 
 
 at the time when such notification is made is was duly made or given by the chief officer 
 
 in charge of the police station or office of of police ; and evidence that it appears from 
 
 which notice has been given to such holder the records kept by authority of the chief 
 
 or person, as the place for receiving his noti- officer of police that a person required as 
 
 fication, or if no such notice has been given, above mentioned to notify his residence or 
 
 in charge of the chief office of such chief change of residence, or to make a report, has 
 
 officer of police. failed to comply with such requirement, shall 
 
 ' The power of the chief officer of a police be prima facie evidence that the person lias 
 
 district to direct that the reports required by not complied with such requirement ; but if 
 
 ss. 5 & 8 of the Prevention of Crimes Act the person charged alleges that he made such 
 
 1871, to be made by holders of licences and notification or report to any particular per- 
 
 persons subject to the supervision of the son or at any particular time, the court shall
 
 chap, i.] Penal Servitude. 77 
 
 If any person to whom this section applies fails to comply with any 
 of the requisitions of this section, he shall in any such case, be guilty 
 of an offence against this Act, (?/) unless he proves to the satisfac- 
 tion of the court before whom he is tried, either that being on a 
 journey he tarried no longer in the place in respect of which he is 
 charged with failing to notify his place of residence than was reason- 
 ably necessary, or that otherwise he did his best to act in conformity 
 with the law, and on conviction of such offence, it shall be lawful for 
 the court in its discretion either to forfeit his licence or to sentence 
 him to imprisonment, with or without hard labour, for a term not 
 exceeding one year, (z) 
 
 Sec. 6 contains regulations for the registering and photograhping of 
 criminals. 
 
 Special offences by persons twice convicted of crime. — By sec. 7, 
 where any person is convicted on indictment of a crime, (a) and a 
 previous conviction of a crime is proved against him, he shall, at any 
 time within seven years immediately after the expiration of the sen- 
 tence passed on him for the last of such crimes be guilty of an offence 
 against this Act, and be liable to imprisonment, with or without hard 
 labour, for a term not exceeding one year, under the following circum- 
 stances, or any of them : — 
 
 First. If, on his being charged by a constable with getting his live- 
 lihood by dishonest means, and being brought before a court of sum- 
 mary jurisdiction, it appears to such court that there are reasonable 
 grounds for believing that the person so charged is getting his liveli- 
 hood by dishonest means ; or 
 
 Secondly. If, on being charged with any offence punishable on 
 indictment or summary conviction, and on being required by a court 
 of summary jurisdiction to give his name and address, he refuses to 
 do so, or gives a false name or a false address : or, 
 
 Thirdly. If he is found in any place, wdiether public or private, 
 under such circumstances as to satisfy the court before whom he is 
 brought that he was about to commit or to aid in the commission of 
 any offence punishable on indictment or summary conviction, or was 
 waiting for an opportunity to commit, or aid in the commission of 
 any offence punishable on indictment or summary conviction : or, 
 
 Fourthly. If he is found in or upon any dwelling-house, or any 
 building, yard, or premises, being parcel of or attached to such dwell- 
 ing-house, or in or upon any shop, warehouse, counting-house, or other 
 place of business, or in any garden, orchard, pleasure ground, or 
 nursery ground, or in any building or erection in any garden, orchard, 
 pleasure ground, or nursery ground, without being able to account to 
 the satisfaction of the court before whom he is brought for his being 
 found on such premises. 
 
 Any person charged with being guilty of any offence against this 
 Act mentioned in this section may be taken into custody as follows, 
 (that is to say) : — 
 
 require the attendance of such persons as (z) This latter clause is substituted for 
 
 may be necessary to prove the truth or false- the old enactment by 54 & 55 Vict. c. 69, 
 
 hood of such allegation.' s. 4. 
 
 (y) Sect. 17 states how offences against (a) See the interpretation clause, s. 20, 
 
 the Act may be prosecuted before a court of ante, p. 69. 
 summary jurisdiction.
 
 78 General Provisions. [book i. 
 
 In the case of any such offence against this Act as is first in this 
 section mentioned, by any constable without warrant, if such con- 
 st;! Mi; is authorised so to do by the chief officer of police of his 
 district ; 
 
 In the case of any such offence against this Act as is thirdly in 
 this section mentioned, by any constable without warrant, although 
 such constable is not specially authorised to take him into custody ; 
 
 Also, where any person is charged with being guilty of an offence 
 against this Act fourthly in this section mentioned, he may, without 
 warrant, be apprehended by any constable, or by the owner or occupier 
 of the property on which he is found, or by the servants of the owner 
 or occupier, or by any other person authorised by the owner or 
 occupier, and may be detained until he can be delivered into the 
 custody of a constable. 
 
 By sec. 8, where any person is convicted on indictment of a crime, (6) 
 and a previous conviction of a crime is proved against him, the court 
 having cognizance of such indictment may, in addition to any other 
 punishment which it may award to him, direct that he is to be sub- 
 ject to the supervision of the police for a period of seven years, or 
 such less period as the court may direct, commencing immediately 
 after the expiration of the sentence passed on him for the last of such 
 crimes. 
 
 Every person subject to the supervision of the police, who is at 
 large in Great Britain or Ireland, shall notify the place of his resi- 
 dence to the chief officer of police of the district in which his residence 
 is situated, and shall, whenever he changes such residence within the 
 same police district, notify such change to the chief officer of police 
 of that district, ' and whenever he is about to leave a police district, 
 he shall notify such his intention to the chief officer of police of that 
 district, stating the place to which he is going, and also, if required, 
 and, so far as is practicable, his address at that place, and whenever 
 he arrives in any police district he shall forthwith notify his place of 
 residence to the chief officer of police of such last-mentioned dis- 
 trict;'^-) moreover every person subject to the supervision of the 
 police, if a male, shall once in each month report himself at such time 
 as may be prescribed by the chief officer of police of the district in 
 which such holder may be, either to such chief officer himself, or to 
 such other person as that officer may direct, and such report may, 
 according as such chief officer directs, be required to be made person- 
 ally or by letter, (d) 
 
 If any person to whom this section applies fails to comply with 
 any of the requisitions of this section, he shall, in any such case, be 
 guilty of an offence against this Act, unless he proves to the satisfac- 
 tion of the court before whom he is tried, either that being on a jour- 
 ney he tarried no longer in the place, in respect of which he is 
 charged with failing to notify his place of residence, than was reason- 
 ably necessary, or that otherwise he did his best to act in conformity 
 with the law ; and on conviction of such offence it shall be lawful for 
 
 (//) See the interpretation clause, s. 20, (d) As to notification, sec 42 & 43 Vict. 
 
 ante, p. 69. c. 55, s. 2, an% p. 76, note (•). 
 
 (c) These words are substituted by 54 & 
 55 Vict. c. 69, s. 4.
 
 chap. I.] Penal Servitude. 79 
 
 the court in its discretion either to forfeit his licence, or to sentence 
 him to imprisonment with or without hard labour for a term not 
 exceeding one year, (e) 
 
 Proceedings upon indictment for subsequent conviction. — By sec. 9, 
 the rules contained in the 24 & 25 Vict. c. 96, s. 116 (ante, p. 68), in 
 relation to the form of and the proceedings upon an indictment for 
 any offence punishable under that Act committed after previous con- 
 viction, shall, with the necessary variations, apply to any indictment 
 for committing a crime as defined by this Act after previous con- 
 viction for a crime, whether the crime charged in such indictment or 
 the crime to which such previous conviction relates be or be not 
 punishable under the said Act, 24 & 25 Vict. c. 96. 
 
 Children of woman convicted after previous conviction. — By sec. 
 14, where any woman is convicted of a crime, if) and a previous 
 conviction of a crime is proved against her, any children of such 
 woman under the age of fourteen years, who may be under her care 
 and control at the time of her conviction for the last of such crimes, 
 and who have no visible means of subsistence, or are without proper 
 guardianship, shall be deemed to be children to whom in Great 
 Britain the provisions of the Industrial Schools Act, 1866 (29 & 30 
 Vict. c. 118), and in Ireland the provisions of the Industrial Schools 
 (Ireland) Act, 1868, apply, and the court by whom such woman is 
 convicted, or two justices or a magistrate, shall have the same power 
 of ordering such children to be sent to a certified industrial school as 
 is vested in two justices or a magistrate by the fourteenth section of 
 the Industrial Schools Act, 1866, and by the eleventh section of the 
 Industrial Schools (Ireland) Act, 1868, in respect of the children in 
 the said sections described. 
 
 Penal Servitude Act, 1891. — By the 54 & 55 Vict. C. 69 : — 
 
 Sec. 1. — (1.) Where under any enactment in force when this sec- 
 tion comes into operation a court has power to award a sentence of 
 penal servitude, the sentence may, at the discretion of the court, be 
 for any period not less than three years, and not exceeding either five 
 years, or any greater period authorised by the enactment, 
 
 (2.) Where under any Act now in force or under any future Act 
 a court is empowered or required to award a sentence of penal servi- 
 tude, the court may in its discretion, unless such future Act other- 
 wise provides, award imprisonment for any term not exceeding two 
 years, with or without hard labour. 
 
 (3.) Section two of the Penal Servitude Act, 1864, is hereby re- 
 pealed with respect to any sentence awarded after the date at which 
 this section comes into operation. 
 
 Sec. 2. (1.) Any constable may take into custody without warrant 
 any holder of a licence under the Penal Servitude Acts, or any person 
 under the supervision of the police in pursuance of the Prevention of 
 Crimes Act, 1871, whom he reasonably suspects of having committed 
 any offence, and may take him before a court of summary jurisdiction 
 to be dealt with according to law. 
 
 (2.) Any convict may be convicted before a court of summary 
 
 (e) These words are substituted by 54 & (f) See the interpretation clause, s. 20, 
 
 55 Vict. c. 69, s. 4. ante, p. 69.
 
 80 General Provisions. [book i. 
 
 jurisdiction of an offence against section three of the Prevention of 
 Crimes Act, 1871, although he was brought before the court on some 
 other charge, or not in manner provided by that section. 
 
 Sec. 3. (1.) Where an offender is, under section nine of the Penal 
 Servitude Act, 1864, undergoing, or liable to undergo, a term of penal 
 servitude in consequence of the forfeiture or revocation of a licence 
 granted in pursuance of the Penal Servitude Acts, Her Majesty may 
 grant a licence to the offender in like manner as if the forfeiture or 
 revocation of the former licence were a sentence of penal servitude 
 which the offender is liable to undergo. 
 
 (2.) Where a person is sentenced on any conviction to a term of 
 penal servitude, and by virtue of the same conviction his licence is 
 forfeited, the term for which he is sentenced, together with the term 
 which he is required further to undergo under the said section, shall, 
 for all purposes of the Penal Servitude Acts relating to licences, be 
 deemed to be one term of penal servitude, and those Acts shall apply 
 as if, on conviction of the offence, the offender had been sentenced to 
 the combined term. 
 
 By sec. 4. — (1.) Sections five and eight of the Prevention of Crimes 
 Act, 1871, and section two of the Prevention of Crimes Act, 1879 
 (which recites and refers to those sections), are modified as shown 
 above. 
 
 (2.) Her Majesty may, by order under the hand of a Secretary of 
 State, remit any of the requirements of sections five and eight of the 
 Prevention of Crimes Act, 1871, either generally or in the case of 
 any holder of a licence or person subject to the supervision of the 
 police. 
 
 Sec. 5. The provisions of the Penal Servitude Act, 1864, applying 
 to a licence in the form set forth in Schedule A. to that Act, shall 
 apply also to a licence in any other form for the time being author- 
 ised by section ten of that Act. 
 
 Sec. 6. A person who has been convicted on indictment of a crime 
 within the meaning of the Prevention of Crimes Act, 1871, and 
 against whom a previous conviction of such a crime is proved, shall, 
 
 (a.) if the second sentence is to a term of imprisonment, then at 
 any time within seven years after the expiration of the sentence ; and 
 
 (6.) if the second sentence is to a term of penal servitude, then 
 whilst at large on licence under that sentence, and also at any time 
 within seven years after the expiration of the sentence, be guilty of 
 an offence against the Prevention of Crimes Act, 1871, under the 
 circumstances stated in section seven of that Act or any of them, and 
 may be taken into custody in manner provided by that section. 
 
 Sec. 7. Section four of the Act passed in the fifth year of the reign 
 of King George the Fourth, chapter eighty-three, intituled ' An Act 
 for the punishment of idle and disorderly persons and rogues and 
 vagabonds in that part of Great Britain called England,' as amended 
 by section fifteen of the Prevention of Crimes Act, 1871, shall be 
 read and construed as if the provisions applying to suspected per- 
 sons and reputed thieves frequenting (g) the places and with the 
 intent therein described, applied also to every suspected person or 
 
 (g) As to the meaning of "frequent," see R. v. Clark, 14 Q. B. D. 92.
 
 chap. I.] Hard Labour — Whipping, Etc. 81 
 
 reputed thief loitering about or in any of the said places and with 
 the said intent. 
 
 Sec. 8. The Secretary of State may make regulations as to the 
 measuring and photographing of all prisoners who may for the time 
 being be confined in any prison ; and all the provisions of section six 
 of the Prevention of Crimes Act, 1871, with respect to the photo- 
 graphing of prisoners shall apply to any regulations as to measur- 
 ing made in pursuance of this section. All regulations made under 
 this section shall be laid before both Houses of Parliament as soon as 
 practicable after they are made. 
 
 Juvenile Offenders. 
 
 By the Reformatory Schools Act 1893 (56 & 57 Vict. c. 48) : — 
 Sec. 1. Where a youthful offender, who in the opinion of the court 
 before whom he is charged is less than sixteen years of age, is con- 
 victed, whether on indictment or by a court of summary jurisdiction, 
 of an offence punishable with penal servitude or imprisonment, and 
 either — 
 
 (a) appears to the court to be not less than twelve years of age ; or 
 
 (b) is proved to have been previously convicted of an offence pun- 
 ishable with penal servitude or imprisonment, the court may, in 
 addition to or in lieu of sentencing him according to law to any pun- 
 ishment, order that he be sent to a certified reformatory school, and 
 be there detained for a period of not less than three and not more 
 than five years, so, however, that the period is such as will in the 
 opinion of the court expire at or before the time at which the offender 
 will attain the age of nineteen years. 
 
 By sec. 2. Without prejudice to any other powers of the court, 
 the court may direct that the offender be taken to a prison, or to any 
 other place, not being a prison, which the court thinks fit, and the 
 occupier of which is willing to receive him, and be detained therein 
 for any time not exceeding seven days, or in case of necessity for a 
 period not exceeding fourteen days, or until an order is sooner made 
 for his discharge, or for his being sent to a reformatory school, or 
 otherwise dealt with under this or any other Act ; and the person 
 to whom the order is addressed is hereby empowered and required to 
 detain him accordingly, and if the offender escapes he may be appre- 
 hended without warrant and brought back to the place of detention. 
 
 Punishment of hard labour, solitary confinement, whipping, &c. 
 
 By 3 Geo. 4, c. 114, after reciting the 53 Geo. 3, c. 162, it is 
 enacted, that 'whenever any person shall be convicted of any of 
 the offences hereafter specified and set forth, that is to say [any 
 assault with intent to commit felony ] ; any attempt to commit 
 
 felony; any riot [any misdemeanor for having received stolen g Is, 
 
 knowing them to have been stolen; any assault upon a peace officer, 
 or upon an officer of the customs or excise, or upon any other 
 officer of the revenue, in the due discharge and execution of his oi 
 their respective duty or duties, or upon any person or persons acting 
 
 YOL. I. — 6
 
 82 General Provisions. [book i. 
 
 in aid of any such officer or officers in the due discharge and execution 
 of his or their respective duty or duties, any assault committed in 
 pursuance of any conspiracy to raise the rate of wages ; being an 
 utterer of counterfeit money, knowing the same to be counterfeit ; 
 knowingly and designedly obtaining money, goods, wares, or merchan- 
 dises, bills, bonds, or other securities for money, by false pretences, 
 with intent to cheat any person of the same] ; keeping a common 
 gaming-house, a common bawdy-house, or a common ill-governed and 
 disorderly house ; wilful and corrupt perjury, or of subornation of 
 perjury ; [having entered any open or enclosed ground with intent 
 there illegally to destroy, take, or kill game or rabbits, or with intent 
 to aid, abet, and assist any person or persons illegally to destroy, take, 
 or kill game or rabbits, and having been there found armed with an 
 offensive weapon], (h) in each and every of the above cases, and when- 
 ever any person shall be convicted of any or either of the aforesaid 
 offences, it shall and may be lawful for the court before which any 
 such offender shall be convicted, or which by law is authorised to pass 
 sentence upon any such offender, to award and order (if such court 
 shall think fit) sentence of imprisonment with hard labour for any 
 term not exceeding the term for which such court may now imprison 
 for such offences, either in addition to or in lieu of any other punish- 
 ment which may be inflicted on any such offenders by any law in 
 force before the passing of this Act ; and every such offender shall 
 thereupon suffer such sentence, in such place, and for such time as 
 aforesaid, as such court shall think fit to direct.' 
 
 The parts of this statute between brackets, except the part stated to 
 be repealed by 36 & 37 Vict. c. 91, are repealed by the 9 Geo. 4, c. 31, 
 s. 1 ; 9 Geo. 4, c. 53, s. 1 ; 9 Geo. 4, c. 74, s. 125 ; 7 & 8 Geo. 4, 
 c. 27 ; and 2 Will. 4, c. 34, s. 1. 
 
 As to sentence to hard labour where offence punishable under 7 & 8 
 Geo. 4, c. 28, see s. 9 of that Act, ante, p. 65. 
 
 By 7 Will. 4 & 1 Vict. c. 84, s. 3, when any person shall be con- 
 victed of any offence punishable under this Act for which imprison- 
 ment may be awarded, it shall be lawful for the court to sentence 
 the offender to be imprisoned, with or without hard labour, in the 
 common gaol or house of correction, and also to direct that the offender 
 shall be kept in solitary confinement for any portion or portions of 
 such imprisonment, not exceeding one month at any one time, and 
 not exceeding three months in any one year, as to the court in its 
 discretion shall seem meet. 
 
 By 14 & 15 Vict. c. 100, s. 29, whenever any person shall be 
 convicted of any one of the offences following, as an indictable misde- 
 meanor; that is to say, any cheat or fraud punishable at common 
 law ; any conspiracy to cheat or defraud, or to extort money or goods, 
 or falsely to accuse of any crime, or to obstruct, prevent, pervert, or 
 defeat the course of public justice ; any escape or rescue from lawful 
 custody on a criminal charge ; any public and indecent exposure of 
 the person ; any indecent assault, or any assault occasioning actual 
 bodily harm ; any attempt to have carnal knowledge of a girl under 
 twelve years of age ; any public selling, or exposing for public sale 
 
 (h) The part within brackets is repealed by 36 & 37 Vict. c. 91.
 
 chap i.] Hard Labour — Whipping, Etc. 83 
 
 or to public view of any obscene book, print, picture, or other indecent 
 exhibition; it shall be lawful for the court to sentence the offender 
 to be imprisoned for any term now warranted by law, and also to be 
 kept to hard labour during the whole or any part of such term of 
 imprisonment. 
 
 Each of the Consolidation Acts, 24 & 25 Vict. c. 96 (larceny, &c), 
 s. 118; c. 97 (malicious injuries to property), s. 74; c. 98 (forgery), 
 s. 52 ; c. 99 (offences relating to the coin), s. 39, and c. 100 (offences 
 against the person), s. 69, contains the following clause : — 
 
 ' Whenever imprisonment, with or without hard labour, may be 
 awarded for any indictable offence under this Act, the Court may 
 sentence the offender to be imprisoned, or to be imprisoned and kept 
 to hard labour, in the common gaol or house of correction.' 
 
 By 28 & 29 Vict. c. 126, (entitled, 'An Act to consolidate and 
 amend the law relating to prisons,') s. 67, In every prison to which 
 this Act applies, prisoners convicted of misdemeanor, and not sen- 
 tenced to hard labour, shall be divided into at least two divisions, 
 one of which shall be called the first division ; and whenever any 
 person convicted of misdemeanor is sentenced to imprisonment with- 
 out hard labour, it shall be lawful for the court or judge before whom 
 such person has been tried to order, if such court or judge think 
 fit, that such person shall be treated as a misdemeanant of the first 
 division ; and a misdemeanant of the first division shall not be deemed 
 to be a criminal prisoner within the meaning of this Act. (i) 
 
 Each of the Consolidation Acts 24 & 25 Vict. c. 96, s. 119; c. 97, 
 s. 75 ; c. 98, s. 53 ; c. 99, s. 40, and c. 100, s. 70, contains the follow- 
 ing clause : — 
 
 ' Whenever solitary confinement may be awarded for any indict- 
 able offence under this Act, the Court may direct the offender to be 
 kept in solitary confinement for any portion or portions of his im- 
 prisonment, or of his imprisonment with hard labour, not exceeding 
 one month at any one time, and not exceeding three months in any 
 one year.' (j) 
 
 Whipping. — Each of the Consolidation Acts 24 & 25 Vict. c. 96, 
 s. 119 ; c. 97, s. 75 ; c. 100, s. 70, contains the following clause : — 
 
 ' Whenever whipping may be awarded for any indictable offence 
 under this Act, the Court may sentence the offender to be once 
 privately whipped ; and the number of strokes, and the instrument 
 with which they shall be inflicted, shall be specified by the Court in 
 the sentence! 
 
 No limit as to the instrument to be used or the number of strokes 
 which may be inflicted seems to be imposed in the case of whipping 
 
 (i) This Act does not apply to the prisons use of the prison and contiguous thereto. 
 
 for convicts under the superintendence of 'Gaoler' shall mean governor, keeper, or 
 
 the directors of convict prisons, or to any other chief officer of a prison (s. 4). The 40 
 
 military or naval prison (s. 3). The expres- & 41 Vict. c. 21 contains further regulations 
 
 sions hereinafter mentioned shall have the for the treatment of prisoners, and by s. 40 
 
 meanings hereinafter attached to them un- persons convicted of sedition or seditions 
 
 less there is something in the tenor of the libel, and by s. 41, persons imprisoned for 
 
 Act inconsistent with such meanings, i. e., any contempt of court are to be treated as 
 
 prison shall mean gaol, house of correction, first class misdemeanants. See Osborne v. 
 
 bridewell, or penitentiary ; it shall also in- Milman, 18 Q. B. D. 471. 
 elude the airing grounds or other grounds or (j) See 1 Vict. c. 90, s. 5, ante, p. 66. 
 
 buildings occupied by prison officers, for the
 
 84 General Provisions. [book i. 
 
 for indictable offences. By 25 & 26 Vict. c. 18, where whipping is 
 ordered by justices in the case of an offender under fourteen years of 
 age, the instrument is to be a birch rod, and the number of strokes are 
 not to exceed twelve. A similar provision is contained in the Sum- 
 mary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49, s. 11), and by s. 10 
 of the same Act, a child under twelve may not be ordered to receive 
 more than six strokes of the birch rod. By 25 & 26 Vict. c. 18, s. 2, 
 ' No offender shall be whipped more than once for the same offence.' 
 
 Whipping can only be awarded to adults under the provisions of 
 26 & 27 Vict. c. 44, winch provides that a male offender may be once, 
 twice, or thrice, privately whipped, and that if his age does not exceed 
 sixteen years, the number of strokes shall not exceed twenty-five at each 
 whipping, and the instrument used shall be a birch rod. In the case 
 of any other male offender, the number of strokes shall not exceed fifty 
 at each whipping, and the court is to specify the instrument to be 
 used. In the case of taking a reward for helping to the discovery of 
 stolen property, whipping can be inflicted on a male offender who is 
 under the age of eighteen (24 & 25 Vict. c. 96, s. 101). In many other 
 cases (chiefly relating to offences against property) this punishment 
 can be inflicted on male offenders under the age of sixteen, and also, by 
 the 48 & 49 Vict. c. 69, s. 4, in case of offences against girls under 
 thirteen. This section expressly incorporated the provisions of 25 & 26 
 Vict. c. 18. It would, therefore, seem that it is the intention of the 
 legislature, where a sentence of whipping is imposed on a boy over 
 fourteen and under sixteen years of age that the instrument to be used 
 should be a birch rod, and the number of strokes should not be more 
 than twenty-five. There is no power to order whipping in cases of 
 assault, as 48 & 49 Vict. c. 69, s. 4, only refers to carnal knowledge or 
 attempted carnal knowledge of a girl under thirteen, (k) 
 
 Fine and sureties for the peace. (I) — Each of the Consolidation 
 Acts, 24 & 25 Vict. c. 96, s. 117 ; c. 97, s. 73 ; c. 98, s. 51 ; c. 99, s. 38 ; 
 and c. 100, s. 71, contains the following clause : — 
 
 ' Whenever any person shall be convicted of any indictable mis- 
 demeanor punishable under this Act, the Court may, if it shall think 
 fit, in addition to, or in lieu of any of the punishments by this Act 
 authorised, fine the offender, and recpnire him to cuter into his own re- 
 cognizances, and to find sureties, both or either, for keeping the peace and 
 being of good behaviour ; and in case of any felony punishable under 
 this Act, (m) the Court may, if it shall think fit, require the offender to 
 enter into his own recognizances, and to find, sureties, both or either, for 
 keeping the peace in addition to any punishment by this Act authorised : 
 Provided that no person shall be imprisoned under this clause for not 
 finding sureties for any period exceeding one year.' 
 
 Punishment of principals in second degree, and accessories. — Each 
 of the Consolidation Acts, 24 & 25 Vict, c 96, s. 98 ; c. 97, s. 56 ; c. 98, 
 s. 49 ; c. 99, s. 35, and c. 100, s. 67, enacts that 'In the case of every 
 felony punishable under this Act, every principal in the second degree, 
 
 (k) Power is given to justices in Quarter (I) As to finding sureties in common-law 
 
 Session by 5 Geo. 4, c. 83, s. 10 to punish misdemeanors, see post. 
 by whipping incorrigible rogues and vaga- (m) The 24 & 25 Vict. c. 100 (the Offences 
 
 bonds. Against the Person Act), s. 71, here adds, 
 
 ' otherwise than with death.'
 
 chap. I.] Binding Over to come up for Judgment. 85 
 
 and every accessory before the fact, shall be punishable in the same 
 manner as the principal in the first degree is by this Act punishable; 
 and every accessory after the fact to any felony punishable under this 
 Act Qn) shall be liable to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement ; (0) and whosoever shall counsel, aid, or abet the com- 
 mission of any indictable misdemeanor punishable under this Act shall 
 be liable to be proceeded against, indicted, and punished, as a principal 
 offender.' (p) 
 
 Sentence when Person in Prison for another Crime. 
 
 By the 7 & 8 George 4, c. 28, s. 10, 'wherever sentence shall be 
 passed for felony on a person already imprisoned under sentence 
 for another crime, it shall be lawful for the court to award imprison- 
 ment for the subsequent offence, to commence at the expiration of the 
 imprisonment to which such person shall have been previously sen- 
 tenced ; and where such person shall be already under sentence, either 
 of imprisonment or of transportation, (q) the court, if empowered to 
 pass sentence of transportation, {q) may award such sentence for the 
 subsequent offence, to commence at the expiration of the imprison- 
 ment or transportation (q) to which such person shall have been pre- 
 viously sentenced, although the aggregate term of imprisonment or 
 transportation (q) respectively may exceed the term for which either 
 of those punishments could be otherwise awarded.' 
 
 Where a person is charged with several offences at the same time 
 of the same kind he may be sentenced to several terms of imprison- 
 ment or penal servitude one after the conclusion of the other, (r) 
 
 So where an indictment for perjury contained two counts charging 
 perjury on two different occasions but with the same object, it was 
 held that they were distinct offences which might however be included 
 in one indictment ; that a general verdict of Guilty was good, and 
 that the full punishment of seven years penal servitude might be in- 
 flicted for each offence, the second term to begin at the termination of 
 the first, (s) 
 
 Binding over to come up for Judgment when called upon. 
 
 By the Probation of First Offenders Act, 1887 (50 & 51 Vict. c. 25) — 
 Sec. 1. (1) In any case in which a person is convicted of larceny or 
 false pretences, or any other offence punishable with not more than 
 two years imprisonment before any court, and no previous conviction 
 is proved against him, if it appears to the court before whom he is 
 so convicted that regard being had to the youth, character, and 
 antecedents of the offender, to the trivial nature of the offence, and 
 
 (») Accessories after the fact to murder (r) R. v. Williams, 1 Leach, 536. See 
 
 and the receivers of stolen goods are excepted. Gregory v. R., 15 Q. B. 974; 19 L. J., Q. B. 
 
 (o) The Offences Against the Person Act 366. 
 and Coin Act omit solitary confinement. ( s) R. v. Castro, 6 Ap. Cas. 229, in 
 
 (p) This clause is omitted in the Coin which the House of Lords entirely declined 
 
 Act, but the 24 & 25 Vict. c. 94, s. 8, sup- to follow the American case of Tweed v. 
 
 plies the omission. Liscomb, where the contrary was decided in 
 
 (q) Penal servitude now; see the 20 & 21 the State of New York, 15 Sickel's, N. Y. 
 
 Vict. c. 3, s. 6, ante, p. 74. C. A. 559.
 
 86 General Provisions. [book i. 
 
 to any extenuating circumstances under which the offence was com- 
 mitted, it is expedient that the offender be released on his entering 
 into a recognizance with or without sureties, and, during such period 
 as the court may direct, to appear and receive judgment when called 
 upon, and in the mean time to keep the peace and be of good behaviour, 
 
 (2) The court may, if it thinks fit, direct that the offender shall pay 
 the costs of the prosecution, or some portion of the same, within such 
 period and by such instalments as may be directed by the court. 
 
 Sec. 2. (1) If a court having power to deal with the offender in 
 respect of his original offence, or any court of summary jurisdiction, 
 is satisfied by information on oath that the offender has failed to 
 observe any of the condition of his recognizance, it may issue a 
 warrant for his apprehension. 
 
 (2) An offender when apprehended on any such warrant shall if 
 not brought forthwith before the court having power to sentence 
 him be brought before a court of summary jurisdiction, and that 
 court may either remand him by warrant until the time at which 
 he was required by his recognizance to appear for judgment, or 
 until the sitting of the court having power to deal with his original 
 offence, or may admit him to bail with a sufficient surety conditioned 
 on his appearing for judgment. 
 
 (3) The offender when so remanded may be committed to a prison 
 either for the county or place in or for the county or place where he 
 is bound to appear for judgment, and the warrant of remand shall 
 order that he be brought before the court before which he was bound 
 to appear for judgment, or to answer as to his conduct since his 
 release. 
 
 Sec. 3. The Court before directing the release of. an offender under 
 this Act, shall be satisfied that the offender or his surety has a fixed 
 place of abode or regular occupation in the county or place for which 
 the Court acts, or in which the offender is likely to live during the 
 period named for the observance of the conditions. 
 
 Sec. 4. In this Act the term ' Court ' includes a court of sum- 
 mary jurisdiction. 
 
 Bestitution. 
 
 Restitution to the owner of stolen property. — As to restitution and 
 recovery of stolen property (t) by the 24 & 25 Vict. c. 96, s. 100, ' if any 
 person guilty of any such (u) felony or misdemeanor as is mentioned 
 in this Act, in stealing, taking, obtaining, extorting, embezzling, con- 
 verting, or disposing of, or in knowingly receiving any chattel, money, 
 valuable security, or other property whatsoever, shall be indicted for 
 such offence, by or on the behalf of the owner of the property, or his 
 executor or administrator, and convicted thereof, in such case the 
 property shall be restored to the owner or his representative ; and in 
 every case in this section aforesaid the Court before whom (v) any 
 
 (t) As to power of magistrates to order Stancliffe, 11 Cox, C. C. 318 ; R. v. Gold- 
 restitution, see 2 & 3 Vict. c. 71, s. 29 ; 42 smith, 12 Cox, C. C. 594. 
 & 43 Vict. c. 49, s. 44 ; R. v. D'Eyncourt, (v) The Court of Q. B. has no power to 
 21 Q. B. D. 109. order the writ of restitution ; Walker v. 
 
 (u) This section applies where goods, &c, London (Mayor of), 11 Cox, C. C. 280, 38 
 
 have been obtained by false pretences ; R. v. L. J. M. C. 107.
 
 chap, i.] Restitution. 87 
 
 person shall be tried for any such felony or misdemeanor shall have 
 power to award from time to time writs of restitution for the said 
 property, or to order the restitution thereof in a summary manner: 
 Provided, that if it shall appear before any award or order made that 
 any valuable security shall have been bona fide paid or discharged by 
 some person or body corporate liable to the payment thereof, or being 
 a negotiable instrument shall have been bona fide taken or received, 
 by transfer or delivery, by some person or body corporate, for a just 
 and valuable consideration, without any notice or without any reason- 
 able cause to suspect that the same had by any felony or misdemeanor 
 been stolen, taken, obtained, extorted, embezzled, converted, or disposed 
 of, in such case the Court shall not award or order the restitution of 
 such security ; provided also, that nothing in this section contained shall 
 apply to the case of any prosecution of any trustee, banker, merchant, 
 attorney, factor, broker, or other agent, intrusted with the possession of 
 goods or documents of title to goods, for any misdemeanor against this 
 Act: (w) 
 
 The law is that upon the conviction of a thief, the prosecutor ac- 
 quires a new title to his goods ; and, therefore, although previous to the 
 conviction they may have been bought by an innocent purchaser in 
 market overt, upon the conviction the prosecutor may sue the innocent 
 purchaser in trover, (x) and this applies where the goods have been 
 obtained by false pretences, as well as where they have been stolen, (y) 
 
 By 35 & 36 Vict. c. 93, s. 30, if any person is convicted in any court 
 of feloniously taking, or fraudulently obtaining any goods and chattels, 
 and it appear to the court that the same have been pawned with a 
 pawnbroker, the court, on proof of the ownership of the goods and 
 chattels, may, if it thinks fit, order the delivery thereof to the owner, 
 either on payment to the pawnbroker of the amount of the loan or of 
 any part thereof, or without payment thereof or of any part thereof, 
 as to the court, according to the conduct of the owner and the other 
 circumstances of the case, seem just and fitting. 
 
 Restitution of the proceeds of stolen property. — One stole cattle and 
 sold them in open market at Coventry, and was immediately appre- 
 hended by the sheriffs of Coventry, and they seized the money, and 
 the thief was hanged at the suit of the owner of the cattle ; and by 
 the Court : the party shall have restitution of the money, notwithstand- 
 ing the words of the 21 H. 8, c. 11, ' the goods stolen,' &c. ; and 
 Crooke, J., said that this was usual at Newgate, (z) And where a 
 servant took gold from his master, and changed it into silver, it was 
 held that the master should have restitution of the silver by the 
 21 H. 8, c. 11. (a) 
 
 (w) This clause is taken from the 7 & 8 this section, and leaves all cases of felony 
 
 Geo. 4, c. 29, s. 57, and 9 Geo. 4, c. 55, within it. The proviso applies to the right 
 
 s. 50 (I.). It is extended so as to include to recover as well as to the summary resti- 
 
 cases where property has been extorted, em- tution. Chichester v. Hill, 15 Cox, C. C. 
 
 bezzled, or disposed of within the meaning 258. 
 
 of any of the sections of this Act. The last (x) Lindsay w. Cundy, 1 Q. B. D. 348, 
 
 proviso was introduced especially to protect reversed on a different view of facts, 2 Q. B. 
 
 persons who receive goods from factors, &c, D. 96 & 3 Ap. Cas. 459. 
 
 under such circumstances that their title to (y) Bentley v. Vilmont, 12 Ap. Cas. 471. 
 
 them is valid. See 6 Geo. 4, c. 94, and 5 & (z) Haris's case, Noy, 128. 
 
 6 Vict. c. 39. It is to he observed, how- (u) Hanberries' case, cited in Holiday v. 
 
 ever, that this proviso only excepts prosecu- Hicks, Cro. El. 661. 
 tions for misdemeanors from the operation of
 
 88 General Provisions. [book i. 
 
 Where a prisoner was convicted of stealing a bill of exchange for 
 £100, and a considerable sum of money in specie, and the evidence 
 tended to show that he must have purchased a horse with part of the 
 proceeds of the bill, the Court ordered the horse to be delivered to the 
 prosecutor, (b) It has been held that the Court has jurisdiction under 
 24 & 25 Vict. c. 96, s. 100 to entertain an application for the restitution 
 of the proceeds of the property as well as the property itself, but such 
 an application ought only to be granted if the proceeds are in the 
 hands of the convict, or of an agent who holds them for him. (c) 
 
 Restitution after a transfer under the Factors Act. — Where a pris- 
 oner was indicted for stealing a £10 Bank of England note, it was 
 held that an order could not be made to restore it after it had been 
 paid and cancelled by the Bank, (d) 
 
 Where the prisoner had been convicted of stealing certain pieces of 
 plush, the property of De Gilley, and it appeared that he had sold the 
 plush to Hart for £1,200, under such circumstances as to enable Hart 
 successfully to defend an action brought by De Gilley, on the ground 
 that he had bona fide dealt with the prisoner as the agent of De Gilley 
 and as having the possession of the plush within the 5 & 6 Vict. c. 39, 
 it was held that the property in the plush revested in De Gilley on 
 the conviction of the prisoner, and an order was made under the 7 & 8 
 Geo. 4, c. 29, s. 57, to restore it to De Gilley. (e) 
 
 Mode of proceeding -where the prisoner pleads guilty. — A prisoner 
 pleaded guilty to several indictments charging him with stealing a 
 large amount of property, and an order was applied for upon several 
 pawnbrokers to deliver up to the prosecutor the goods which had 
 been pledged with them. It was objected for the pawnbrokers that it 
 might be that the property had never belonged to the prosecutor ; or, 
 if it had, that the prisoner had been his agent, and had pledged the 
 goods under circumstances that did not amount to felony, and that 
 the prisoner's confession was no evidence against the pawnbrokers. 
 Alderson, B. : 'I certainly think that the pawnbrokers should not be 
 absolutely bound by the prisoner's confession. It ought not to affect 
 them. But, on the other hand, the Act prescribes that where the 
 person robbed has prosecuted the thief to conviction, he shall have an 
 order from the Court that his goods be restored to him. Would not the 
 better course be to bring the goods into court that they may be identi- 
 fied, and that affidavits should be made on both sides of any matters 
 the parties may think it necessary to state ? We should then have 
 an opportunity of forming our judgment upon the facts.' It was 
 suggested that the depositions would disclose what the facts were. 
 Alderson, B. : ' But then even the statement in the depositions would 
 not be conclusive against third persons.' The next day Alderson, B., 
 said : ' We have looked over the depositions, and are satisfied that this 
 is not a case within the Factors Act, that the prisoner was not an 
 agent, and that in making away with the property he was clearly 
 
 (b) R. v. Powell, 7 C. & P. 640. The B. D. 598. See this ease on appeal, 18 Q. 
 Common-Serjeant, after consulting Gurney, B. D. 314. 
 
 B., and Williams, J. See E. v. The City (</) R. v. Stanton, 7 C. & P. 431. 
 
 of London, infra. Vaughan and Williams, Js. 
 
 (c) P.. v. Central Criminal Court, 17 Q. (e) R. v. Wollez, 8 Cox, C. C. 337, Com. 
 
 Kerr.
 
 chap, i.] Restitution. g9 
 
 guilty of felony. We shall, therefore, make the order for restitution, 
 subject, of course, to the identity of the goods being established.' (f) 
 
 Judge has power only as regards stolen property and its proceeds. — 
 A judge has no power either at common law or by statute to direct 
 the disposal of property in the possession of a convicted felon, not 
 belonging to, or not being the proceeds of property that belonged to, 
 the prosecutor. Where, therefore, an order stated that the prisoner 
 had been convicted of stealing a large quantity of gold, and that certain 
 Turkish bonds were found in his possession, and that one-sixth of 
 these bonds had been bought with money produced by the sale of the 
 property so stolen, and that the other five-sixths were held by a 
 trustee for a woman and her child, and it was ordered that the bonds 
 should be delivered to the prosecutor's solicitor to the use of the 
 prosecutor as to one-sixth, and as to the other five-sixths to be settled 
 on the woman and child, it was held, that the order was bad as to 
 the five-sixths : for the judges had no power, either by statute or 
 at common law, to order any disposal of these portions of the 
 property, (g) 
 
 Stolen goods sold in ' market overt.' — The order of restitution is 
 cumulative to the ordinary remedy by action, and is not a condition 
 precedent to such remedy, and the only consequence of the Court 
 refusing an order is, to leave the owner to the ordinary remedy by 
 action ; and in such case the owner may maintain trover for the stolen 
 goods after the conviction of the thief ; for though the goods have been 
 sold in market overt, the property in them is revested in the owner on 
 conviction of the thief, (h) 
 
 Where pawnbroker has advanced money on goods. — It was held in 
 Ireland, on the 9 Geo. 4, c. 55, s. 50 (similar to the 7 & 8 Geo. 4, c. 29, 
 s. 57), that the prosecutor ought not to be ordered to pay a pawn- 
 broker the money advanced by him on stolen goods which are ordered 
 to be restored to the owner, (i) 
 
 Restitution when goods have been sold and money found on the 
 prisoner. — By 30 & 31 Vict, c. 35, s. 9, where any prisoner shall be 
 convicted, either summarily or otherwise, of larceny or other offence, 
 which includes the stealing of any property, and it shall appear to 
 the Court by the evidence that the prisoner has sold the stolen 
 property to any person, and that such person has had no knowledge 
 that the same was stolen, and that any monies have been taken from 
 the prisoner on his apprehension, it shall be lawful for the Court, on 
 the application of such purchaser, and on the restitution of the stolen 
 
 (/) R. v. Macklin, 5 Cox, C. C. 216, Pierce, 7 Cox, C. C. 206, which is a report 
 
 Alderson, B., and Martin, B. It was urged of the making of the order in question, 
 that a writ of restitution should be awarded, (h) Scattergood v. Sylvester, 15 Q. B. 
 
 and then the whole matter might be en- 506 ; R. v. Stancliti'e, 11 Cox, C. C. 318, 
 
 quired into. Alderson, B., said, that the where goods had been pawned to a bona fide 
 
 only case he could find of such a writ was pawnee. Walker v. Matthews, 8 Q. B. D. 
 
 Burgess v. Coney, 1 Trem. PI. C. 315, and 109. As to the meaning of market overt, 
 
 he saw no necessity for it in this case. It see Hargreave v. Spink (1892), 1 Q. B. 25. 
 seems that the order for restitution will be (i) R. v. Sargent, 5 Cox, C. C. 499. 
 
 limited to the property identified at the See 35 & 36 Vict. c. 93, s. 30, ante, S7- 
 
 trial, as being the subject of the indictment. Crampton, J., and Richards, B. It is per- 
 
 R. v. Goldsmith, 12 Cox, C. C. 594. fectly clear the Court has no jurisdiction 
 
 (g) R. v. The City of London, 1 E. B. & to make any such order to pay the pawn- 
 
 E. 509; 27 L. J. M. C. 231. See R. v. broker.
 
 9() General Provisions. [book i. 
 
 property to the prosecutor, to order that out of such monies a sum not 
 exceeding the amount of the proceeds of the said sale be delivered to 
 the said purchaser. 
 
 Costs of Prosecutions. — Ordering Rewards. 
 
 Attendance of witnesses, how remunerated. — Formerly the law 
 provided no means for reimbursing the witnesses on criminal prosecu- 
 tions. As length, by the 27 Geo. 2, c. 3, 18 Geo. 3, c. 19, and 58 Geo. 
 3, c. 70, in cases of felony, certain provisions were made for that 
 purpose. These, however, did not extend to cases of misdemeanors ; 
 but now by the 7 Geo. 4, c. 64, s. 22 (repealing the above-mentioned 
 statutes) it is enacted, ' that the court before which any person shall 
 be prosecuted or tried for any felony is hereby authorized and empow- 
 ered, at the request of the prosecutor or of any other person, who 
 shall appear on recognizance or subpoena to prosecute or give evidence 
 against any person accused of any felony, to order payment unto the 
 prosecutor of the costs and expenses which such prosecutor shall 
 incur in preferring the indictment, and also payment to the prosecutor 
 and witnesses for the prosecution of such sums of money as to the 
 court shall seem reasonable and sufficient to reimburse such prosecu- 
 tor and witnesses for the expenses they shall have severally incurred 
 in attending before the examining magistrate or magistrates (j) and 
 the grand jury, and in otherwise carrying on such prosecution, and 
 also to compensate them for their trouble and loss of time therein ; 
 and, although no bill of indictment be preferred, it shall still be law- 
 ful for the court, where any person shall, in the opinion of the court, 
 bona fide have attended the court in obedience to any such recog- 
 nizance or subpoena, to order payment unto such person of such sum 
 of money as to the court shall seem reasonable and sufficient to reim- 
 burse such person for the expenses which 1 he or she shall have bona 
 fide incurred by reason of attending before the examining magistrate 
 or magistrates, and by reason of such recognizance or subpoena, and 
 also to compensate such person for trouble and loss of time ; and the 
 amount of the expenses of attending before the examining magistrate or 
 magistrates, and the compensation for trouble and loss of time therein, 
 shall be ascertained by the certificate of such magistrate or magis- 
 trates, granted before the trial or attendance in court, if such magis- 
 trate or magistrates shall think fit to grant the same ; and the amount 
 of all the other expenses and compensation shall be ascertained by the 
 proper officer of the court, subject nevertheless to the regulations to 
 be established in the manner hereinafter mentioned.' (k) 
 
 And by sec. 23, after reciting that for want of power in the court 
 to order payment of the expenses of any prosecution for a misdemeanor, 
 many individuals are deterred by the expense from prosecuting per- 
 sons guilty of misdemeanors, it is further enacted, ' that where any 
 prosecutor or other person shall appear before any court on recogni- 
 
 0') 29 & 30 Vict. c. 52, provides for pay- (&) And see 33 & 34 Vict. c. 23, ss. 3 & 
 
 ment of witnesses' expenses, &c, when there 4, post. 
 is no committal for trial. This Act has 
 from time to time been continued.
 
 chap. i.J Costs of Prosecutions. 91 
 
 zance or subpoena, to prosecute or give evidence against any person 
 indicted of any assault with intent to commit felony, of any attempt 
 to commit felony, of any riot, of any misdemeanor for receiving any 
 stolen property knowing the same to have been stolen, of any assault 
 upon a peace officer in the execution of his duty, or upon any per- 
 son acting in aid of such officer, of any neglect or breach of duty 
 as a peace officer, of any assault committed in pursuance of any con- 
 spiracy to raise the rate of wages,of knowingly and designedly obtain- 
 ing any property by false pretences, of wilful and indecent exposure 
 of the person, of wilful and corrupt perjury, or of subornation of per- 
 jury ; every such court is hereby authorized and empowered to order 
 payment of the costs and expenses of the prosecutor and witnesses for 
 the prosecution, together with a compensation for their trouble and 
 loss of time, in the same manner as courts are hereinbefore authorized 
 and empowered to order the same in cases of felony ; and although 
 no bill of indictment be preferred, it shall still be lawful for the court, 
 where any person shall have bona fide attended the court, in obedience 
 to any such recognizance, to order payment of the expenses of such 
 person, together with a compensation for his or her trouble and loss 
 of time, in the same manner as in cases of felony : provided, that in 
 cases of misdemeanor the power of ordering the payment of expenses 
 and compensation shall not extend to the attendance before the exam- 
 ining magistrate.' (7) 
 
 The 14 & 15 Vict. c. 55, s. 1, repeals the proviso in the preceding 
 section, which provides that the payment of expenses and compen- 
 sations shall not extend to the attendance before the examining 
 magistrate. 
 
 Sec. 2. ' All the provisions of the 7 Geo. 4, c. 64, as amended by this 
 Act, authorizing and empowering courts to order payment of costs and 
 expenses, and compensation for trouble and loss of time, in cases of the 
 several misdemeanors enumerated in sec. 23 of the said Act of King 
 George the Fourth, and concerning orders for payment of such costs, 
 expenses, and compensation, and the payment thereof, and all the pro- 
 visions of any other Act for, concerning, or applicable to the payment 
 of such costs, expenses, and compensation in cases of the said misde- 
 meanors, shall extend and be applicable in the case of any of the 
 misdemeanors hereinafter mentioned ; namely, unlawfully and carn- 
 ally knowing and abusing any girl being above the age of ten years 
 and under the age of twelve years ; unlawfully taking or causing to 
 
 (/) Sec. 24 provides that the order for such costs, expenses, and compensation 
 
 the payment of the expenses shall be made to prosecutors and witnesses, in like manner 
 
 out by the clerk of the assizes, &c.,and paid as other courts may order the treasurer of 
 
 by the county treasurer ; and sect. 25 pro- the county to pay the same.' [See 7 & 8 
 
 vides how the expenses shall be paid in Vict. c. 2, s. 1, ante, as to costs where 
 
 places not contributing to the county rate, offence committed within the jurisdiction 
 
 Sec. 26 empowered the Courts of Quarter of the Admiralty. See also 17 & IS Vict 
 
 Sessions to make regulations as to the rate c. 104, ss 267, 518, ante.] The Municipal 
 
 of costs and expenses. But this section is Corporation Act, 5 & 6 Will. 4, c. 76, s. 113, 
 
 repealed by the 14 & 15 Vict. c. 55, s. 4. provides that all sums directed to be paid by 
 
 The 7 Geo. 4, c. 64, s. 27, empowers the judge virtue of the 7 Geo. 4, c. 64, in respect of 
 
 of the Court of Admiralty in felonies and felonies and misdemeanors committed, or 
 
 misdemeanors of the denominations before supposed to have been committed, in any 
 
 mentioned, committed upon the high seas, borough in which a separate Court of Quarter 
 
 ' to order the assistant to the counsel for the Sessions shall be holden, shall be paid out 
 
 affairs of the admiralty and navy, to pay of the borough fund ; and the order of the
 
 92 General Provisions. [book i. 
 
 be taken any unmarried girl, being under the age of sixteen years, out 
 of the possession and against the will of her father or mother, or of 
 any other person having the lawful care or charge of her ; (m) con- 
 spiring to charge any person with any felony, or to indict any person 
 of any felony ; conspiring to commit any felony.' 
 
 Sec. 3 is repealed by 37 & 38 Vict. c. 66, the Statute Law Eevision 
 Act, 1875. 
 
 Sec. 4 repealed the power of the Quarter Sessions to establish and 
 alter regulations as to the rate of any costs and expenses in criminal 
 cases. 
 
 Regulations as to costs, expenses, and compensations. — Sec. 5. ' It 
 shall be lawful for one of Her Majesty's principal secretaries of state 
 to revoke any regulations made under the provision hereinbefore 
 repealed, and to make regulations as to the rates or scales of payment 
 of all or any costs, expenses, and compensations to be allowed or 
 ordered to be paid under the said Act or any other Act or this Act to 
 prosecutors and witnesses, and to persons attending the court in obe- 
 dience to any recognizance or subpoena, in cases of criminal prosecu- 
 tions, and (except as hereinafter mentioned) to persons who may have 
 been active in or towards the apprehension of persons charged with 
 offences, and also regulations as to the rates or scales of payment 
 according to which certificates may be granted by the examining 
 magistrate or magistrates in respect of the expenses of any prosecutor, 
 or witness or witnesses for the prosecution, or other person, of attend- 
 ing before such magistrate or magistrates, and of any compensation for 
 trouble and loss of time therein, in any case where any court or judge 
 is empowered under the said Act of the seventh year of King George 
 the Fourth or any other Act or this Act to order payment of such 
 expenses or compensation, and concerning the forms of such certifi- 
 cates and the details or particulars to be inserted therein of the 
 expenses, trouble, and loss of time to which such certificates relate, 
 and it shall be lawful for one of Her Majesty's principal secretaries of 
 state from time to time to alter any such regulations or make new 
 regulations in relation to any of the matters aforesaid, and such regu- 
 lations for the time being shall be binding on all courts and persons 
 whomsoever.' 
 
 Sec. 6. ' Where any court or judge empowered under the said Act of 
 the seventh year of King George the Fourth, or under any other Act or 
 this Act, in this behalf, shall order payment to any prosecutor, or wit- 
 ness or witnesses for the prosecution, or to any person attending the 
 court in obedience to any recognizance or subpeena, in the case of any 
 
 court shall be directed to the treasurer of the in detached parts of counties, and for the 
 
 borough. Sec. 114 provides for the treas- payment of the same by the county to which 
 
 urers of counties keeping accounts of the the detached parts belong. The 5 & 6 Vict, 
 
 expenses of prosecutions of offenders sent c. 98, ss. 18, 19, and 20, contains also pro- 
 
 from boroughs for trial at the assizes, and visions for the payment by boroughs of the 
 
 for the payment of them by the boroughs, expenses of the prosecution of borough pris- 
 
 As to the construction of this section, see oners confined in county gaols, and for the 
 
 R. v. Johnson, 10 A. & E. 740. See 15 & 16 manner of paying the expenses of the con- 
 
 Viet. c. 81, s. 38. The 2 & 3 Vict. c. 82, veyance and maintenance of such prisoners, 
 which provides for the trial of offenders in (m) The preceding cases are now provided 
 
 detached parts of counties, by sect. 2 pro- for by the 24 & 25 Vict. c. 100, s. 77. 
 vides for the treasurers of counties keeping 
 an account of the expenses of prosecutions,
 
 chap, i.] Costs of Prosecutions. 93 
 
 prosecution for felony or any misdemeanor or offence of any costs or 
 expenses incurred, or of any compensation for trouble or loss of time, or 
 order payment (except as hereinafter mentioned) to any person who 
 may appear to have been active in or towards the apprehension of any 
 person charged with any offence, of compensation for expenses, exer- 
 tions, and loss of time in or towards such apprehension, the amount of 
 such costs, expenses, or compensation shall be ascertained by the proper 
 officer of the court according to the regulations made under this Act ; 
 and where the expenses and compensation in respect of attending 
 before any examining magistrate or magistrates are so ordered to be 
 paid, such expenses and compensation shall also be ascertained by the 
 proper officer of the court according to such regulations, but the 
 amount thereof as so ascertained shall not exceed the amount men- 
 tioned in the certificate of the examining magistrate or magistrates, 
 and, save as aforesaid, the certificate of any examining magistrate or 
 magistrates shall not be conclusive as to the amount to be allowed for 
 expenses of attendance before him or them, or for compensation for 
 trouble or loss of time therein.' 
 
 The Larceny Act, 24 & 25 Vict. c. 96, s. 121, the Malicious Injuries 
 Act, 24 & 25 Vict. c. 97, s. 77, and the Forgery Act, 24 & 25 Vict. 
 c. 98, s. 54, contain the like provisions as to costs in the case of mis- 
 demeanors, which are in the following terms : — 
 
 The court before which any indictable misdemeanor against this 
 Act shall be prosecuted or tried, may allow the costs of the prosecu- 
 tion in the same manner as in cases of felony ; and every order for the 
 payment of such costs shall be made out, and the sum of money men- 
 tioned therein paid and repaid, upon the same terms and in the same 
 manner in all respects as in cases of felony. 
 
 The Coin Act, 24 & 25 Vict. c. 99, s. 42, provides for the costs of 
 prosecutions in mint cases. See this enactment noticed post. The 
 Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50) makes pro- 
 vision for the payment of costs in prosecutions for corrupt practices. 
 
 Guardians and overseers required to prosecute in certain cases. — 
 By the Offences against the Person Act, 24 & 25 Vict. c. 100, s. 73, 
 ' where any complaint shall be made of any offence against section 
 twenty-six of this Act, (n) or of any bodily injury inflicted upon any 
 person under the age of sixteen years, for which the party committing 
 it is liable to be indicted, and the circumstances of which offence 
 amount, in point of law, to a felony, or an attempt to commit a felony, 
 or an assault with intent to commit a felony, and two justices of the 
 peace before whom such complaint is heard shall certify under their 
 hands that it is necessary for the purposes of public justice that the 
 prosecution should be conducted by the guardians of the union or 
 place, or, where there are no guardians, by the overseers of the poor 
 of the place in which the offence shall be charged to have been com- 
 mitted, such guardians or overseers, as the case may be, upon personal 
 service of such certificate or a duplicate thereof upon the clerk of such 
 guardians or upon any one of such overseers, shall conduct the prose- 
 cution, and shall pay the costs reasonably and properly incurred by 
 
 (n) This clause relates to ill-treating apprentices and servants, and will be found 
 post, vol. i.
 
 94 General Provisions. [book i. 
 
 them therein (so far as the same shall not be allowed to them under 
 any order of any court) out of the common fund of the union, or out of 
 the funds in the hands of the guardians or overseers, as the case may 
 be ; and, where there is a board of guardians, the clerk or some other 
 officer of the union or place, and, where there is no board of guardians, 
 one of the overseers of the poor may, if such justices think it neces- 
 sary for the purposes of public justice, be bound over to prosecute.' (o) 
 
 Sec. 74. ' Where any person shall be convicted on any indictment 
 of any assault, whether with or without battery and wounding, or either 
 of them, such person may, if the court think fit, in addition to any sen- 
 tence which the court may deem proper for the offence, be adjudged to 
 pay to the prosecutor his actual and necessary costs and expenses of 
 the prosecution, and such moderate allowance for the loss of time as 
 the court shall by affidavit or other inquiry and examination ascer- 
 tain to be reasonable ; and unless the sum so awarded shall be sooner 
 paid, the offender shall be imprisoned for any term the court shall 
 award, not exceeding three months, in addition to the term of im- 
 prisonment (if any) to which the offender may be sentenced for the 
 offence.' (p) 
 
 Sec. 75. ' The court may, by warrant under hand and seal, order 
 such sum as shall be so awarded to be levied by distress and sale of 
 the goods and chattels of the offender, and paid to the prosecutor, and 
 that the surplus, if any, arising from such sale shall be paid to the 
 owner ; and in case such sum shall be so levied, the imprisonment 
 awarded until payment of such sum shall thereupon cease.' 
 
 Sec. 77. ' The court before which any misdemeanor indictable under 
 the provisions of this Act shall be prosecuted or tried may allow the 
 costs of the prosecution in the same manner as in cases of felony ; and 
 every order for the payment of such costs shall be made out, and the 
 sum of money mentioned therein paid and repaid, upon the same terms 
 and in the same manner in all respects as in cases of felony.' (q) 
 
 It may be as well to observe that the 14 & 15 Vict. c. 19, s. 14, is 
 only in force in one case, as all the other clauses creating offences in 
 that Act are repealed. By sec. 11 of that Act any person may appre- 
 hend any person committing any indictable offence by night, and by 
 sec. 12, any person liable to be apprehended under that Act assaulting 
 or offering violence to any person authorized to apprehend or detain 
 him, or to any person acting in his aid and assistance, is guilty of a 
 misdemeanor: and by sec. 14, 'in all prosecutions for any offence 
 against the provisions of this Act, it shall be lawful for the court 
 
 (o) This clause is taken from the 14 & 15. tered to 'any misdemeanor indictable under 
 
 Vict. c. 11, ss. 6, 7. See 7 & 8 Vict. c. 101, the provisions of this Act,' in order merely 
 
 s. 59 ; 28 & 29 Vict. c. 79, s. 9. to exclude common assaults, and nothing 
 
 (p) This and the following clauses are new more; and it should seem that that is the 
 
 in England ; they are taken from the 10 Geo. only case where costs cannot be given ; for 
 
 4, c. 34, ss. 33, 34 (I.). wherever it is necessary to insert in an in- 
 
 (q) This clause is old, as far as relates to dictment the particular words of any clause 
 
 the costs of misdemeanors against the 14 & in this Act in order to warrant the punish- 
 
 15 Vict. c. 19, 14 & 15 Vict. c. 11, 12 & 13 ment given by that clause, the misdemeanor 
 
 Vict. c. 76. It is new as to any misde- plainly is ' indictable under the provisions of 
 
 meanor created by this Act. The words of this Act.' Thus, under sec. 47, the indict- 
 
 the clause originally were, ' any indictable ment must allege actual bodily harm, and 
 
 misdemeanor against this Act,' but in the therefore in that case the court may allow 
 
 committee of the Commons they were al- the costs. C. S. G. As to the person enti-
 
 chap, i.] Costs of Prosecutions. 95 
 
 before which any such offence shall he prosecuted or tried to allow 
 the expenses of the prosecution in all respects as in cases of felony.' (r) 
 
 By the 13 & 14 Vict. c. 101, s. 9, ' where any person shall be 
 charged with and convicted of any assault upon any officer of a work- 
 house or relieving officer in the due execution of his duty, or upon 
 any person acting in aid of such officer, the court may sentence the 
 offender to the same punishment as is provided by law for an assault 
 upon a peace officer or revenue officer in the due execution of his 
 duty, and shall have the same power as in case of such last-mentioned 
 assault to order payment of the costs and expenses of the prosecution.' 
 And by the 14 & 15 Vict. c. 105, s. 18, the preceding provision is 
 extended ' to an assault upon any person included under the w< >rd 
 " officer " in the 4 & 5 Will. 4, c. 75, or upon any other person acting 
 in his aid.' 
 
 The 14 & 15 Vict. c. 100, s. 19, provides for the costs of the prose- 
 cution where a judge, &c, has ordered the indictment to be tried under 
 that Act. See this enactment noticed, vol. iii., Perjury. 
 
 As to the costs of the prosecution of a bankrupt, see post, vol. ii. 
 
 As to the costs of prosecutions under the Merchant Shipping Acts, 
 see ante. 
 
 As to costs of a prosecution under the Prevention of Cruelty to 
 Children Act, see post. 
 
 As to costs under the Official Secrets Act, see post. 
 
 As to the costs of prosecutions under the Corrupt Practices Act, 
 1883 (46 & 47 Vict. c. 51), see s. 57. 
 
 As to costs of prosecutions under the Merchandise Marks Act, 1887, 
 see 50 & 51 Vict. c. 28, s. 14, vol. ii. 
 
 Costs in prosecutions for indecent assault. — By the Criminal Law 
 Amendment Act, 1885, 48 & 49 Vict. c. 69, s. 18. ' The court be- 
 fore which any misdemeanor indictable under this Act, or any case of 
 indecent assault shall be prosecuted or tried, may allow the costs of 
 the prosecution in the same manner as in cases of felony, and may in 
 like manner on conviction, order payment of such costs by the person 
 convicted, and every order for the allowance or payment of such costs 
 shall be made out, and the sum of money mentioned therein paid and 
 repaid upon the same terms and in the same manner in all respects as 
 in cases of felony.' 
 
 Central Criminal Court. — The Central Criminal Court Act, 4 & 5 
 Will. 4, c. 36, s. 12, enacts, that ' it shall be lawful for any two of 
 the said justices and judges of oyer and terminer and of gaol delivery 
 to order and direct the costs and expenses of prosecutors and wit- 
 nesses, in all cases where prosecutors and witnesses may be by law 
 entitled thereto, to be paid by the treasurer of the county, in which 
 the offence of any person prosecuted would have been tried but for 
 this Act ; and that every such treasurer, or some known agent, shall 
 attend the said justices and judges of oyer and terminer and gaol 
 delivery during the sitting of the court, to pay all such orders.' 
 
 By the 19 & 20 Vict. c. 16 (which empowers the Court of Queen's 
 
 tied to conduct a prosecution and thus get (r) See sec. 11, post, vol. i. and sec. 12, 
 
 costs, see R. v. Yates, 7 Cox, C. C. 361 ; post, vol. i. 
 K. v. Bushell, 16 Cox, C. C. 367.
 
 96 General Provisions. [book i. 
 
 Bench to order certain offenders to be tried at the Central Criminal 
 Court), s. 13, ' whenever any indictment or inquisition shall have been 
 transmitted or removed to the said Central Criminal Court under the 
 provisions of this Act,- it shall be lawful for the said Central Criminal 
 Court to order such expenses of the prosecutor and witnesses, and such 
 other expenses, and such of the several rewards payable in pursuance 
 of any statute made or to be made, as to such Central Criminal Court 
 shall seem reasonable and sufficient, to be paid by and to the same 
 persons and in the same manner as if such Central Criminal Court 
 were holden under commissions of oyer and terminer and gaol delivery 
 for the county or place in which such indictment shall have been found 
 or such inquisition shall have been taken.' 
 
 Sec. 25. 'Whenever any application shall be made on behalf 
 of Her Majesty or of any prosecutor to the said Court of Queen's 
 Bench, or to any judge thereof, for an order that any person charged 
 with any offence shall be tried at the said Central Criminal Court 
 under the provisions of this Act, it shall be lawful for the said Court 
 of Queen's Bench in term time, or for the said judge in vacation, to 
 issue a certificate, upon the production of which the commissioners of 
 Her Majesty's treasury may order to be paid out of any monies pro- 
 vided by Parliament for law charges in England to the person so 
 charged a sum not exceeding twenty pounds, to enable such person to 
 defray the charges and expenses of the attendance of his witnesses : 
 provided that the sum so advanced shall be allowed for in the sum 
 which in the event of the acquittal of such person may become pay- 
 able under the order hereinafter mentioned.' 
 
 Sec. 26. ' In case any person who shall be tried at the said Central 
 Criminal Court under the provisions of this Act, upon an application 
 on behalf of Her Majesty or of any prosecutor, shall be there ac- 
 quitted, it shall be lawful for the justices and judges of the said 
 Central Criminal Court before whom any such acquittal shall have 
 taken place, or for any two or more of them, to order reimbursement 
 to the person so acquitted of such sum as shall appear to them to have 
 been properly expended for such removal of the trial of such person, 
 and the commissioners of Her Majesty's treasury shall upon receipt of 
 such order pay such sum or sums out of any monies provided by Par- 
 liament for law charges in England.' (s) 
 
 By the 46 & 47 Vict. c. 51, s. 50, indictments under the Corrupt 
 Practices Prevention Acts may under certain circumstances be tried 
 at the Central Criminal Court. 
 
 Costs of prosecutions in adjoining counties. — The 38 Geo. 3, C. 52, 
 ss. 2, 3, provides for the trial in the next adjoining county of offences 
 committed or charged to have been committed in certain cities and 
 towns corporate ; and by sec. 8, ' in all cases of indictments and other 
 proceedings, which may be tried before His Majesty's justices of oyer 
 and terminer or general gaol delivery for any county, in pursuance of 
 the provisions contained in this Act, it shall and may be lawful for 
 such justices to order the expenses of the prosecution, and of the wit- 
 
 (s) By sec. 24 the Court of Queen's 27, the treasurer of the county where the 
 Bench may impose terms on the prosecutor offence was committed is to pay for the pris- 
 or person charged as to costs, &c. By sect, oner's maintenance in Newgate.
 
 chap. I.] Costs of Prosecutions. 97 
 
 nesses, and of the several rewards payable in pursuance of the statutes 
 in such cases made and provided on the conviction of offenders, to be 
 paid by and to the same persons, and in the same manner, as the same 
 would be payable if such indictment had been tried in the court of 
 oyer and terminer or general gaol delivery of the county of such city 
 or town corporate.' (t) The 51 Geo. 3, c. 100, s. 2, extends the pre- 
 ceding clause to the expenses of maintaining the prisoner and carrying 
 his sentence into execution in the adjoining county. The 14 & 15 
 Vict. c. 55, s. 19, provides that in the counties of cities and towns 
 named in the first column of Schedule (C.) to the 5 & 6 Will. 4, c. 76, 
 prisoners may be committed and tried in the counties declared by 
 sec. 24 to be the next adjoining counties, and which are those men- 
 tioned in the second column of the said schedule, and sec. 23 provides 
 that all the provisions of the 51 Geo. 3, c. 100, applicable to convic- 
 tions in pursuance of the provisions of the 38 Geo. 3, c. 52, ' and to 
 the execution of the sentences passed upon any convicts on such con- 
 victions, and all the provisions of the said Acts respectively concerning 
 the payment of expenses, shall be applicable in all cases of persons 
 who may be tried in or removed for trial to any adjoining county in 
 pursuance of the provisions of this Act, in like manner as in cases of 
 persons tried in or removed for trial to any adjoining county in pursu- 
 ance of the provisions of the said Act of the 38 Geo. 3.' 
 
 The 60 Geo. 3, and 1 Geo. 4, c. 14, s. 1, authorize justices of 
 the peace to commit any person charged with any capital offence 
 committed within any exclusive jurisdiction, not being a county, 
 to the gaol of the county within which such exclusive jurisdiction 
 is situated, to be tried at the next assizes for such county ; and 
 by sec. 3, ' in all cases of any commitment to the county gaol, under 
 the authority of this Act, all the expenses to which the county may 
 be put by reason of such commitment, together with all such expenses 
 of the prosecution and witnesses as the judge shall be pleased to allow 
 by virtue of any law now in force, shall be borne and paid by the said 
 town, liberty, soke or place within which such offence shall have been 
 committed, in like manner and to be raised by the same means whereby 
 such expenses would have been raised and paid if the offender had 
 been prosecuted and tried within the limits of such exclusive jurisdic- 
 tion ; and that the judge, or court of oyer and terminer and general 
 gaol delivery, shall have full power and authority to make such order 
 touching such costs and expenses as such judge or court shall deem 
 proper ; and also to direct by whom and in what manner such ex- 
 penses shall in the first instance be paid and borne, and in what 
 manner the same shall be repaid and raised within the limits of such 
 exclusive jurisdiction, in case there be no treasurer or other officer 
 within the same, who by the custom and usage of such place ought to 
 pay the same in the first instance.' 
 
 By s. 169 of the Municipal Corporations Act, 1882, (u) a municipal 
 corporation of a borough having a separate Court of Quarter Sessions, 
 shall be liable to pay the costs of any felony or other offence com- 
 mitted or supposed to be committed within the borough and of which 
 
 (t) See. 9 makes Yorkshire the next ad- Sec. 10 of this Act is repealed by the 5 & 6 
 
 joining county to Kingston-upon-Hull, and Will. 4, c. 76, s. 109. 
 Northumberland to Newcastle-upon-Tyne. (u) 45 & 46 Vict. c. 50. 
 
 VOL. i. — 7
 
 98 General Provisions. [book i. 
 
 the costs of prosecution are payable by law. The order for payment is 
 to be directed to the treasurer of the borough. 
 
 Cases iu which the costs have been allowed. — The following cases 
 relative to the allowance of costs under these statutory provisions may 
 properly be introduced in this place. 
 
 A party bound over by the sessions to prosecute at a superior court 
 is entitled to his expenses under the 7 Geo. 4, c. 64. The prosecutor 
 was bound over by the Court of Quarter Sessions for Surrey, to prose- 
 cute for a burglary at the Central Criminal Court, and it was held that 
 he was entitled to his expenses, (v) 
 
 Where the prosecutor and his witnesses had been bound by recog- 
 nizance to prosecute and to give evidence at the assizes, but by a 
 mistake the prisoner had been discharged by proclamation at the ad- 
 journed sessions, which preceded the assizes ; and the prosecutor and 
 his witnesses had appeared at the assizes and preferred an indictment, 
 which had been found by the grand jury ; Taunton, J., held, that as 
 the bill had been preferred and found, he might, under the word 
 ' prosecuted,' in sec. 22 of 7 Geo. 4, c. 64, order the expenses ; but 
 if the witnesses had merely appeared at the assizes according to their 
 recognizances, and no bill had been preferred, he should have had no 
 authority, (w) 
 
 Where a prosecutrix and witnesses were bound over to prosecute 
 and give evidence against a prisoner for feloniously administering a 
 destructive thing to the prosecutrix, but, by the advice of counsel, no 
 indictment for felony was preferred, but only an indictment for a 
 common-law misdemeanor, the costs of the attendance of the prosecu- 
 trix and witnesses were allowed under the 7 Geo. 4, c. 64, s. 23. (x) 
 
 Where a prisoner who was committed on a charge of felony during 
 the assizes, did not reach the assize town until after the grand jury 
 were discharged, Hullock, B., after reference to the statute, allowed 
 the witnesses their expenses, (y) 
 
 Where an indictment for a riot was found at one assizes, and the 
 trial took place at the subsequent assizes, but no person was bound 
 over to prosecute at these assizes, but the witnesses were subpoenaed 
 to appear at both the assizes ; the Court of King's Bench were clearly 
 of opinion that the judge had authority to order the costs of the wit- 
 nesses to be paid; but it was doubted whether the judge had authority 
 to grant the prosecutor his costs, (z) But where the prosecutor, in a 
 case of perjury, was not bound over to prosecute by any magistrate, 
 but he had included his own name in a subpoena, which he had caused 
 to be issued, the court were of opinion that the words of the Act did 
 not limit the allowance of the expenses of the prosecutor to those 
 which he incurred as a witness, but that he was entitled to receive 
 
 (v) R. v. Paine, 7 0. & P. 135, Lord contended that the words must be read 
 
 Denman, C. J., J. A. Park, J., and Bol- reddendo singula singulis; and the statute 
 
 land, B. (7 Geo. 4, c. 64) therefore applied where the 
 
 (w\ R. v. Robey, 5 C. & P. 552. prosecutor appeared on recognizance or the 
 
 (as) R. v. Hanson, 2 C. & K. 912, Wil- witness on subpoena. Littledale, J., said, 
 
 Hams, J. The charges in the indictment ' There is much doubt in my mind as to the 
 
 were of misdemeanors, for which no costs expenses of the prosecutor. At present I 
 
 could have been allowed. think that he is not entitled to them ; it 
 
 (y) Anonymous, 1 Lew. 128. seems likely that the legislature meant to 
 
 (z) R. v. Jeyes, 3 A. & E. 416. It was give the expenses to the prosecutor only
 
 chap. I.] Costs of Prosecutions. 99 
 
 them in his character of prosecutor ; and they made an order accord- 
 ingly, (a) 
 
 Where the prisoner had been apprehended by a Bench warrant, and 
 the prosecutor was under no recognizance to prosecute, and none of 
 the witnesses were under recognizances, but one of them had been 
 subpoenaed ; on a motion for the costs of the prosecution, Parke, B., 
 at first, thought that he could only grant the costs of the witness 
 who had been subpoenaed, but said he would consider the point ; 
 and on the following day his lordship said that on comparing the 
 words of the 7 Geo. 4, c. 64, s. 22 (relating to felonies) with those 
 of the subsequent section (relating to misdemeanors), it appeared to 
 him that the Court had authority, in prosecutions for the former class 
 of offences, to award the prosecutor his costs, even though he was not 
 under any recognizance ; and he accordingly granted the costs of the 
 prosecution generally, including the witnesses, (b) 
 
 A prosecution upon the 8 & 9 Vict. c. 109, s. 17, (c) for winning 
 money by unlawful devices, is one in which the costs can be ordered 
 under the words, ' knowingly and designedly obtaining any property 
 by false pretences,' in the 7 Geo. 4, c. 64, s. 23. (d) 
 
 Where in a case of manslaughter the father of the deceased gave a 
 retainer to an attorney to prosecute, and he prepared briefs and de- 
 livered them to counsel, and obtained and paid for copies of the depo- 
 sitions before the coroner; but the magistrates, who committed the 
 prisoner for trial, bound over a constable of the county police to 
 prosecute, and as was usual in such cases, and in pursuance of gen- 
 eral orders given to the attorney of the police force by the con- 
 stabulary committee for the county, he prepared a brief, which he 
 delivered to another counsel ; it was held under the 7 Geo. 4, c. 64, 
 s. 22, that the person who was bound over to prosecute was really 
 the prosecutor, and that he must be allowed the expenses of the 
 prosecution, but that the attorney retained by the father could 
 not be allowed any costs, (e) 
 
 An engine-driver on a railway had been committed by the coroner for 
 manslaughter, and the grand jury ignored the bill, and no evidence was 
 offered on the coroner's inquisition with the sanction of the judge, and 
 an attorney, acting on the instructions of the relations of the deceased, 
 had carried on the prosecution. Everything had been done which was 
 necessary, and the secretary of state had expressed his opinion that it 
 should be a government prosecution. But the superintendent of 
 police had been bound over to prosecute, and this had been reported 
 to the deputy clerk of the peace, who was authorized to prosecute at 
 the expense of the county, but had declined to do so because the costs 
 allowed by the treasury were insufficient. It was held that, as no 
 authority was given by the superintendent of police to the attorney to 
 prosecute, he could not be allowed the costs. (J) 
 
 where he goes before a magistrate, who binds (b) R. v. Butterwick, 2 M. & Rob. 196. 
 
 him over. A magistrate on hearing the (c) Post, vol. i. 
 
 complaint frequently dismisses it; if the (d) R. v. Gardner, 5 Cox, C. C. 140. 
 prosecutor then goes to the grand jury, I Talfourd, J., after consulting Patteson, J. 
 think he ought not to be paid by the (e) R. v. Yates, 7 Cox, C. C. 361, Mar- 
 treasurer.' tin, B., and Bramwell, B. 
 
 (a) R. v. Sheering, 7 C. & P. 440, cor. (/) R. v. Cook, 1 F. & F. 389, Bram- 
 
 J. A. Park, J., and Coleridge, J. well, B.
 
 100 General Provisions. [book l 
 
 An indictment charging that the defendant assaulted J. S., and un- 
 lawfully and indecently (not saying publicly) exposed his person to 
 J. S., with intent to incite J. S. to commit an unnatural offence with 
 the defendant, is not an offence within the 7 Geo. 4, c. 64, s. 23, and 
 therefore the court cannot allow the prosecutor his expenses under 
 that clause, (g) 
 
 Neither the committing magistrate nor the judge at the trial has 
 power to order the costs of apprehending a prisoner on a charge of 
 felony in Scotland (h) or in America ; (i) nor has the court any au- 
 thority to order payment of the expenses of taking a prisoner who is 
 in custody in Millbank penitentiary to an assize town under a habeas 
 corpus, in order that he may be tried for felony. (J) 
 
 Where an indictment for riot was found at the Quarter Sessions, and 
 removed by the prosecutor into the Court of King's Bench by certiorari, 
 and the record sent down for trial at Nisi Prius, made a remanet, 
 and again entered at the following assizes, when the defendants were 
 convicted. No recognizance had been returned to the Crown Office, 
 and the prosecutor was not bound by recognizance to prosecute in the 
 Court of King's Bench. The witnesses were subpoenaed, but their 
 expenses were not prayed by them, but by the prosecutor, as having 
 been defrayed by him ; the prosecutor also had caused himself to be 
 subpoenaed. The consideration of the judges was desired whether, in 
 such case of an indictment for a misdemeanor, removed by the prose- 
 cutor himself from the Quarter Sessions into the King's Bench, an 
 order of Nisi Prius might legally be made for any and what costs, or 
 whether the application must not be elsewhere ; and the judges deter- 
 mined that no costs were allowable under the statute, (k) 
 
 Where six indictments for felony were removed by the prisoner, one 
 of which only was tried, and at the trial the judge doubted whether he 
 had any power to give the prosecutor his costs, the Court of King's 
 Bench refused to order the treasurer of the county of the city of Exeter 
 to pay the prosecutor the expenses of the prosecution ; as, if the costs 
 of the prosecution could be granted at all, they ought to be granted by 
 the judge who tried the prisoner. (/) 
 
 Where, in pursuance of a recognizance, the prosecutor at the Quarter 
 Sessions preferred an indictment for riot, and he afterwards removed it 
 
 (g) R. v. , 8 A. & E. 589. made a rule absolute, ordering the city and 
 
 (h) R. v. Seaton, 6 Cox, C. C. 78, note, county of Exeter to pay the expenses. The 
 
 Cresswell, J. 7 Geo. 4, c. 64, was in force at the time of the 
 
 (i) R. v. Barrett, 6 Cox, C. C. 78. Wil- trial. R. & M. C. C. R. 175. See R. v. The 
 
 liams, J. , suggested that the proper course Treasurer of the County of the City of Exeter, 
 
 was to memorialize the secretary of state, infra, where the court seem to have been of 
 
 and then probably the judge would be opinion that the costs had been improperly 
 
 referred to, and would report whether it was allowed in this instance, and to have over- 
 
 a fit case for the allowance. ruled this case. 
 
 (j) R. v. Waters, 8 Cox, C. C. 350. (1) R. v. The Treasurer of Exeter, 5 M. 
 
 Channell, B., after consulting Keating, J. & Ry. 167. Littledale, J., added, 'even the 
 
 (h) R. v. Johnson, R. & M. C. C. R. 173. judge has no power where the case has been 
 
 The same point was decided by the judges in removed by certiorari. There is no differ- 
 
 R. v. Oates, mentioned in R. & M. C. C. R. ence in substance between an indictment 
 
 175. In R. v. Ellis, convicted at Nisi removed by the prisoner and an indictment 
 
 Prius, at Exeter, in 1826, for a felony com- removed by the prosecutor. ' 'The Act only 
 
 mitted before the 7 Geo. 4, c. 64, was in applies to indictments tried before the courts 
 
 operation, and whilst the 58 Geo. 3, c. 70, in which they were found.' 
 was in force, the Court of King's Bench
 
 chap. I.] Costs of Prosecutions. 101 
 
 into the Court of King's Bench, it was held that the prosecutor was not 
 entitled to his costs; and Lord Teuterden, C. J., said, that the matter 
 had been considered by the twelve judges, who were all of opinion that 
 the Act (7 Geo. 4, c. 64) did not apply to cases where the indictment had 
 been removed into the Court of King's Bench by certiorari, (m ) 
 
 But where an indictment was found at the Middlesex Quarter Ses- 
 sions, and removed by the defendant by certiorari into the Queen's 
 Bench, and tried at the sittings after term, when Lord Den man, 
 C. J., made an order for the payment to the prosecutor or his at- 
 torney of the expenses of the prosecution and the witnesses, and 
 that order was afterwards made a rule of court; upon showing 
 cause against a rule to show cause why that rule should not be dis- 
 charged, it was contended that the words of the statute applied to any 
 court, and that the reason of the decision hi R. v. Jeyes (n) was, 
 that the statute was passed to indemnify persons unable to bear the 
 expense, and that inability was not likely to exist where the party 
 voluntarily removed the indictment to the superior court, and that 
 the view taken by Littledale, J., in R. v. The Treasurer of Exeter, (o) 
 was incorrect. In support of the rule it was contended that the 
 statute ceased to apply after a removal by certiorari, and that there 
 was no distinction as to the party removing the indictment ; the court, 
 however, did not express any opinion upon this point, (p) 
 
 By 16 & 17 Vict. c. 30, s. 5, whenever a writ of certiorari to remove an 
 indictment is awarded at the instance of the prosecutor, the prosecutor 
 shall enter into recognizance, with the condition ' that the prosecutor shall 
 pay to the defendant or defendants, in case he or they shall be acquitted, 
 his or their costs incurred subsequent to such removal.' (q) The defend- 
 ant was convicted on some of the counts of an indictment which had 
 been removed by certiorari, and acquitted on others. It was held that 
 she had not been acquitted upon the indictment within the meaning 
 of the section, (r) 
 
 Costs of attending a coroner's inquest. — Under the 7 Geo. 4, C. 64, 
 
 s. 22, the court, upon a trial for murder or manslaughter, has no power 
 
 to allow the costs of the attendance of witnesses at the inquest held 
 
 upon the body of the deceased, (s) or of a surgeon for examining the 
 
 ' body by order of the coroner, (t) 
 
 (m) R. v. Richards, 8 B. & C. 420. It is ing in obedience to such summons should 
 
 not stated that the prosecutor or the wit- receive such remuneration and fees as were 
 
 nesses attended the trial under subpoena or specified in the schedule to that Act, which 
 
 recognizance. were, in Great Britain, to he paid out of the 
 
 (n) Ante, p. 98. funds collected for the relief of the poor ; but 
 
 (o) Supra, by sec. 4, no fee is to be paid if the exami- 
 
 (p) P.. v. 8 A. & E. 589. nation takes place without the order of the 
 
 (q) Similar provisions are contained in coroner, or by sec. 5, where the death was 
 Rule 30 of Crown Office Rules, 1886. in any hospital, infirmary, &c. By the 1 
 (»•) R. v. Bayard (1892), 2 Q. B. 181. Vict. c. 68, s. 1, the justices of the peace at 
 (s) R. v. Rees, 5 C. & P. 302. Quarter Sessions, and the town council of 
 (t) R. v. Taylor, 5 C. & P. 301. The any borough having a coroner, are to make a 
 6 & 7 Will. 4, c. 89, however, after by sec. 1 schedule of the fees to be paid by the coroner 
 providing that the coroner may summon holding an inquest (other than the fees pay- 
 medical witnesses, and by sec. 2, that a able to medical witnesses under the 6 & 7 
 majority of the jury may require the coroner Will. 4, c. 89). Sec. 2 repeals so much oi 
 to summon additional medical witnesses, if the 6 & 7 Will. 4, c. 89, as relates to the 
 the first are not satisfactory, enacted by sec. payment of the fees to medical witnesses out 
 3 that legally qualified practitioners attend- of the funds raised for the relief of the poor,
 
 102 General Provisions. [book i. 
 
 "Where the grand jury ignored a bill of indictment for concealing 
 the birth of a child, and the coroner's clerk, who was also under-clerk 
 to the magistrates, was bound over to prosecute ; Maule, J., refused 
 to allow the costs, (u) 
 
 Extra expenses. — Where a witness was brought to bed during her 
 attendance under a recognizance at the assizes ; Parke, J., allowed her 
 the difference between the expenses which would have been incurred 
 had she been at home and those actually incurred at the assize town ; (v) 
 and so where a witness who had come to the assizes at York, under a 
 recognizance to give evidence in a case of forgery, became insane, and 
 it was thought necessary to convey him to the lunatic asylum at Wake- 
 field; Patteson, J., upon the authority of the preceding case, ordered a 
 similar allowance as to the expenses of medical attendance during the 
 time the witness remained at York after he was attacked, and also for 
 the expenses of conveying him to the asylum at Wakefield, (w) 
 
 Where in a case of bigamy the prisoner's first wife had been brought 
 from a distance in order to be identified, if necessary, by a witness, who 
 was willing to take her back, but could not well afford to do so, and 
 she was in very poor circumstances, but it did not become necessary to 
 identify her ; Eolfe, B., allowed the witness all the reasonable expense 
 of bringing the wife and returning her home, in the same manner as a 
 party who had brought a register or book would be allowed all the 
 reasonable cost of producing it in court and restoring it to its former 
 place of custody. (■?;) 
 
 Where in a case of murder it appeared that the offence was com- 
 mitted in a small township, the inhabitants of which were a small 
 community, and extremely poor, and had shown great zeal and activity 
 in getting up the case, and had been put to considerable expense in so 
 doing, which they were but ill able to afford ; the court was applied to 
 that certain expenses might be allowed over and above those usually 
 allowed by the officer of the court, and it was submitted that the 
 words ' in otherwise carrying on the prosecution ' were sufficiently 
 large to include the expenses applied for ; Lord Denman, C. J., after 
 time taken to consider, granted the application, and the clerk of assize 
 made out the order for all the expenses incurred, except the attend- 
 ance of the witnesses before the coroner, (y) 
 
 Cost of cases reserved. — Upon the trial of a felony a case was 
 reserved for the opinion of the judges, and at the following assizes, 
 
 and provides that the coroner shall pay murder by violence inflicted upon the head, 
 
 them ; and by sec. 3, the coroners of coun- no post mortem examination had taken place, 
 
 ties are to lay their accounts before the and Wightman, J., commented in strong 
 
 Quarter Sessions, and the coroners of bor- terms on the great impropriety of neglecting 
 
 oughs to lay them before the town council, such a course, and observed that it was 
 
 and the coroner is to be repaid in the former clearly the duty of a coroner to order such an 
 
 case out of the county rates, and in the latter examination to take place. 
 out of the borough fund. It may be proper (u) R. v. Hodgson, 1 Cox, C. C. 43. No 
 
 to observe that it is the bounden duty of a ground is stated for the refusal, 
 coroner, wherever the death has arisen under (v) Anonymous, cited, 1 Lew. 133. 
 
 such circumstances as lead to the conclusion (") In re Mallison, 1 Lew. 132. 
 
 that the party has died from the criminal (»') R. v. Thomas, 1 Cox, C. C. 44. 
 
 acts of another, to cause a post mortem exam- {y) Lewen's case, 2 Lew. 161. The depo- 
 
 ination of the body to be made by some sitions taken before the coroner were allowed 
 
 medical practitioner. In R. v. Webb, Here- for. 
 ford Spr. Ass. 1843, on an indictment for
 
 chap, i.] Costs of Prosecutions. 103 
 
 Williams, J., who had reserved the case, after reading the 7 Geo. 4, 
 c. 64, s. 22, allowed the costs of the argument hefore the judges as 
 expenses in 'otherwise carrying on the prosecution.' (z) So where a 
 prisoner had been convicted of obtaining money by false pretences, 
 and a point was reserved, which was decided against the prisoner, and 
 the costs of the prosecution had been ordered on the conviction of the 
 prisoner ; Williams, J., after passing sentence on the prisoner at the 
 assizes after the conviction was affirmed, allowed the costs of the case 
 reserved. («) But it has since been held that the court which reserves 
 the case may at the time allow the costs to be incurred in the court 
 above as well as the other costs of the prosecution. And, although 
 the court above has no power to make an order for the costs, it would 
 be convenient for the officer of that court to examine into the costs 
 incurred in that court ; and, although his certificate could not in law 
 bind the taxing officer below, those officers would no doubt consider it 
 as binding upon them, (b) 
 
 Costs where the trial has been postponed. — In one case it was 
 said that when a trial for felony is postponed, the practice is not to 
 allow the prosecutor his expenses till the assize at which the trial 
 comes on, and the expenses were in that case refused at the assizes at 
 which the trial was postponed, (c) So where a defendant did not 
 appear in pursuance of his recognizances, and the prosecutor's recog- 
 nizances were enlarged until the defendant could be apprehended ; 
 Patteson, J., declined to make any order for costs until the case was 
 finally disposed of. (d) But where the coroner had bound over the 
 prosecutor and witnesses to appear at the assizes to give evidence in a 
 case of manslaughter, but the prisoner, who had neither been appre- 
 hended nor was under recognizance, did not appear at the assizes ; 
 Alderson, B., after ordering him to be called, and directing the trial to 
 be put off till the next assizes, allowed the expenses of the prosecutor 
 and witnesses, (e) So in a case of murder, which was postponed until 
 the following assizes, on the application of the prisoner, and in which 
 the costs of the prosecution were very heavy ; Alderson, B., made an 
 order for their payment. (/) So where a prisoner charged with 
 murder had been removed to a lunatic asylum under the 3 & 4 Vict. 
 c. 54, and a bill was found against him for the murder ; Pollock, C B., 
 directed the trial to be postponed to the next assizes, and the recog- 
 nizances of the witnesses to be respited until then, and thought that 
 the costs of the witnesses should not be allowed until it should be 
 
 (z) R. v. Cluderoy, 3 C. & K. 205, a.d. (d) R. v. Young, 2 Cox, C. C. 280. The 
 
 1849. See 1 Den. C. C. 514, for the case bill in this case was found at the Summer 
 
 before the judges. Assizes, 1846, and the defendant's bail ob- 
 
 (a) R. v. Woolley, 4 Cox, C. C. 452. tained an enlargement of his recognizances 
 Lord Campbell, C J., probably was con- on the ground of his ill-health. At the 
 suited on this point. Spring Assizes, 1847, his recognizances were 
 
 (b) R. v. Lewis, D. & B. 326 ; and though estreated, and the application for costs was 
 the court spoke of drawing up a rule, it has at the Summer Assizes, 1847, when every 
 not been done, and no doubt the practice endeavour had been made in vain to procure 
 will be in future according to this opinion of his apprehension. 
 
 the court. In R. v. Dolan, Dears. C. C. (e) Flannery's case, 1 Lew. 133, and in 
 
 436, and R. v. Hornsea, Dears. C. C. 291, a similar case Gurney, B., allowed the costs, 
 
 the court above held that they had no juris- ibid. note, 
 diction over the costs. (/) Bolam's case, Rose. Cr. Ev. 220. 
 
 {c) R. v. Hunter, 3 C. & P. 591, J. A. 
 Park, J.
 
 104 General Provisions. [book i. 
 
 seen whether the prisoner could then be brought up. (g) But at the 
 next assizes, on an affidavit that the prisoner was in a hopeless con- 
 dition of insanity and never likely to be better ; Patteson, J., allowed 
 the costs, and bound the witnesses to appear when called upon, (h) 
 
 Costs ordered out of the funds of a borough. — Hayward and others 
 were convicted upon an indictment for forging a will, at the Shrews- 
 bury assizes. The offence was laid as having been committed at the 
 parish of W. in the county of Salop. An order was made ' by the 
 court' and signed by the clerk of assize, requiring the treasurer of 
 the stock of the borough of Oswestry, in the county of Salop, to pay 
 the prosecutor and his witnesses the costs. The borough of Oswestry 
 does not contribute to the county rate, but raises a rate of the same 
 nature within itself, which is applicable to the costs of prosecutions 
 for offences committed within the borough. The body of the will 
 appeared to have been written, and the supposed mark of the testatrix 
 and signature of the first witness affixed, in the borough of Oswestry. 
 The second signature was added at Wrexham in Denbighshire. 
 Hayward was apprehended at L. in Shropshire, where he had had the 
 will, but, before his apprehension, he had brought the will to Oswestry, 
 and sent it to St. Asaph for probate. The prosecutor and witnesses 
 were bound over by magistrates of Shropshire to give evidence of an 
 offence stated by the recognizances and commitment to have been 
 there committed. The treasurer having refused to obey the order, the 
 Court of Queen's Bench held that the order was conclusive, and 
 granted a mandamus to enforce it ; and, assuming that the validity of 
 the order could be inquired into, Lord Denman, C. J., and Patteson, 
 J., held that it was rightly made. The offence appeared to have been 
 committed partly in Shropshire and partly in Denbighshire ; and, there- 
 fore, the case was rightly tried in Shropshire under the 7 Geo. 4, c. 64, 
 s. 12. And no act appeared to have been done in any part of Shrop- 
 shire but Oswestry ; then as between the county and Oswestry, for the 
 purpose of this order, the offence was one committed in Oswestry, (i) 
 
 Compensation. — The 7 Geo. 4, c. 64, s. 28, 'for the better remuner- 
 ation of persons who have been active in the apprehension of certain 
 offenders,' enacts, that' where any person shall appear to any court of 
 oyer and terminer, gaol delivery, superior criminal court of a county 
 palatine, or court of great sessions, to have been active in or towards 
 the apprehension of any person charged with murder, or with feloni- 
 ously and maliciously shooting at, or attempting to discharge any kind 
 of loaded firearms at any other person, or with stabbing, cutting, or 
 poisoning, or with administering anything to procure the miscarriage of 
 any woman, or with rape, or with burglary or felonious housebreaking, or 
 with robbery on the person, or with arson, or with horse-stealing, bul- 
 lock-stealing, or sheep-stealing, or with being accessory before the fact 
 to any of the offences aforesaid, or with receiving any stolen property, 
 knowing the same to have been stolen ; every such court is hereby 
 authorized and empowered in any of the cases aforesaid to order the 
 sheriff of the county in which the offence shall have been committed to 
 
 (<?) R. v. Dwerryhouse, 2 Cox, C. C. 291. in Oswestry. See the case as R. v. Hayward, 
 
 (h) Ibid. p. 446. 2 C. & K. 234, and as R. v. Jones, 1 Den. 
 
 (i) R. v. Oswestry, 12 Q. B. 239. At all C. C. 166. 
 events there seems to have been an uttering
 
 chap, i.] Ordering Rewards. 105 
 
 pay to the person or persons who shall appear to the court to have been 
 active in or towards the apprehension of any person charged with any 
 of the said offences, such sum or sums of money as to the court shall 
 seem reasonable and sufficient to compensate such person or persons for 
 his, her, or their expenses, exertions, and loss of time in or towards 
 such apprehension ; and where any person shall appear to any court of 
 sessions of the peace to have been active in or towards the apprehen- 
 sion of any party charged with receiving stolen property, knowing the 
 same to have been stolen, such court shall have power to order com- 
 pensation to such person in the same manner as the other courts 
 hereinbefore mentioned: provided always, that nothing herein con- 
 tained shall prevent any of the said courts from also allowing to any 
 such persons, if prosecutors or witnesses, such costs, expenses, and 
 compensation as courts are by this Act empowered to allow to 
 prosecutors and witnesses respectively.' (J) 
 
 Sec. 30. ' If any man shall happen to be killed in endeavouring to 
 apprehend any person who shall be charged with any of the offences 
 hereinbefore last mentioned, it shall be lawful for the court before whom 
 such person shall be tried to order the sheriff of the county to pay to 
 the widow of the man so killed, in case he shall have been married, 
 or to his child or children, in case his wife shall be dead, or to his 
 father or mother, in case he shall have left neither wife nor child, 
 such sum of money as to the court in its discretion shall seem meet ; 
 and the order for payment of such money shall be made out and de- 
 livered by the proper officer of the court unto the party entitled to 
 receive the same, or unto some one on his or her behalf, to be named 
 in such order by the direction of the court ; and every such order 
 shall be paid by and repaid to the sheriff in the manner hereinbefore 
 mentioned.' 
 
 By the 14 & 15 Vict. c. 55, s. 7, ' nothing in this Act or in any regu- 
 lations under this Act shall interfere with, or affect the power of any 
 court to order payment to any person who may appear to such court 
 to have shown extraordinary courage, diligence, or exertion in or to- 
 wards any such apprehension as hereinbefore mentioned of such sum 
 as such court shall think reasonable and adjudge to be paid in respect 
 of such extraordinary courage, diligence, or exertion.' 
 
 Sec. 8. ' When any person appears to any court of sessions of the 
 peace to have been active in or towards the apprehension of any party 
 charged with any of the offences in the said enactment mentioned 
 which such sessions may have power to try, such court of sessions 
 shall have power to order compensation to be paid to such person in 
 the same manner as the other courts in the said enactment mentioned : 
 provided that such compensation to any one person shall not exceed 
 the sum of five pounds, and that every order for payment to any per- 
 son of such compensation be made out and delivered by the proper 
 officer of the court unto such person without fee or payment for 
 the same.' 
 
 The 7 Geo. 4, c. 64, s. 28, does not authorize the court to award 
 compensation to persons who have been active in and towards the 
 
 (,/) Sect. 29 provides that such orders immediate re-payment on application to the 
 shall be paid by the sheriff, who may obtain treasury.
 
 106 General Provisions. [book l 
 
 apprehension of a person guilty of sacrilege, (k) And upon the 
 authority of this case, Bolland, B., refused to allow compensation in a 
 similar case ; though, in the absence of such authority, both he and 
 Parke, J., would have been disposed to put a different construction 
 upon the statute. (/) But it has been held that a person who has 
 been active in the apprehension of a prisoner charged with stealing a 
 cow is entitled to a reward under this section, as the words bullock- 
 stealing, horse-stealing, and sheep-stealing are intended to describe 
 the kind or class of offences in connection with which rewards were 
 to be allowed, (m) Where the prosecutrix's brother-in-law, who lived 
 in her house, was attacked and wounded in bed by some burglars, but 
 he made a gallant resistance and got outside the door of his room and 
 shut it, keeping the burglars inside, and shouting aloud for assistance, 
 and some neighbours came and secured the prisoners, who were still 
 in the room ; Talfourd, J., held that, giving a liberal construction to 
 the 7 Geo. 4, c. 64, s. 28, the case was within it, and ordered a reward 
 accordingly, (n) And where a prisoner was indicted for an attempt 
 to murder her child by suffocating it, and an application was made to 
 allow the extra expenses incurred by the constable in apprehending 
 the prisoner, and for his loss of time, and the attention of the court 
 was directed to the case not being one within the words of sec. 28 ; 
 Patteson, J., was of opinion that it was within the spirit and intention 
 of the Act, though not within the words, and therefore allowed the 
 expenses, (o) But stealing from the person is not included within the 
 words, ' robbery from the person.' (j?) And where on a trial for 
 robbery it appeared that the prosecutor had displayed great courage 
 in apprehending the prisoner; Parke, B., ordered him to be paid a 
 reward, under the word 'exertions.' (q) 
 
 The rewards which may be given under this section are not confined 
 to cases where the party has been put to expense or loss of time, but 
 have been ordered to be paid to persons who have displayed great 
 courage in the apprehension of offenders, although they have neither 
 been put to expense nor loss of time. Thus they have been granted 
 where the person has apprehended the prisoner in the actual commis- 
 sion of a burglary ; (r) and also where the party came downstairs 
 when a burglary was committed, but did not apprehend the prisoners, 
 who were three in number, but was able to give such a description 
 of them as caused their apprehension, (s) 
 
 Where it does not appear upon the evidence given on the trial that 
 the party has been active in the apprehension, an affidavit is neces- 
 sary to be laid before the judge, in order to induce him to grant a 
 reward, (t) Thus where in a case of horse-stealing a constable had 
 
 (k) Robinson's case, 1 Lew. 129, Hullock, (o) Durkin's case, 2 Lew. 163. 
 
 B., who said that 'The word " sacrilege," if (p) R. v. Thompson, 1 Cox, C. C. 43 
 
 used alone in a statute, would not be con- Maule, J., Rose. C. E. 225. 
 strued to come within the words "bur- (q) Womersly's case, 2 Lew. 162. 
 
 glary," or "housebreaking;" and that (r) R. v. Barnes, 7 C. & P. 166, Cole 
 
 wherever, in a penal statute, churches are ridge, J. 
 
 intended to be included, the word "sacri- (s) R. v. Blake, 7 C. & P. 166, Wil 
 
 lege " is introduced.' liams, J. And rewards were ordered in a 
 
 (/) Anonymous, 1 Lew. 130. similar way at the Bristol Special Commis 
 
 (to) R. v. Gilbrass, 7 C. & P. 444, Law sion. See 7 C. & P. 167. 
 Recorder. (t) R. v. Jones, 7 C. & P. 167, J. A 
 
 (n) R. v. Dunning, 5 Cox, C. C. 142. Park, J.
 
 chap. I.] Ordering Rewards. 107 
 
 used great exertions in apprehending the prisoner, and establishing 
 the case against him, and had gone various journeys and been at 
 considerable expense ; Lord Campbell, C. J., held that the application 
 must be founded on an affidavit of the party, stating the amount of 
 money actually expended, &c. (u) 
 
 Serving order for costs. — The entire order of a court to pay the 
 costs of a prosecution made under the 7 Geo. 4, c. 64, s. 26, must be 
 served on the county treasurer, and if the part served only contain a 
 portion of the order, the treasurer is not bound to obey it. (v) 
 
 Costs of witnesses for defence. — By 30 & 31 Vict. C. 35, S. 5, the 
 court before which any accused person shall be prosecuted or tried, or 
 for trial before which he may be committed or bailed to appear for any 
 felony or misdemeanor, is hereby authorized and empowered, in its dis- 
 cretion, at the request of any person who shall appear before such 
 court or recognizance to give evidence on behalf of the person accused, 
 to order payment unto such witness so appearing such sum of money 
 as to the court shall seem reasonable and sufficient to compensate 
 such witness for the expenses, trouble, and loss of time he shall have 
 incurred or sustained in attending before the examining magistrate, 
 and at or before such court, and the amount of such expenses of 
 attending before the examining magistrate, and compensation for 
 trouble and loss of time therein, shall be ascertained by the certificate 
 of such magistrate, granted before the attendance in court ; and the 
 amount of all other expenses and compensation shall be ascertained 
 by the proper officer of the court, who shall, upon receipt of the sum 
 of sixpence for each witness, make out and deliver to the person 
 entitled thereto an order for such expenses and compensation, together 
 with the said fee of sixpence, upon such and the same treasurers and 
 officers as would now by law be liable to payment of an order for the 
 expenses of the prosecutor or witnesses against such accused person ; 
 and if the accusation be of such kind that the court shall have no 
 power to order the expenses of the prosecutor, then upon the treasurer or 
 other officer in the capacity of a treasurer of the county, riding, division, 
 city, borough, or place where the offence of such accused person may be 
 alleged to have been committed, which treasurer or other officer is 
 hereby required to pay the same orders upon sight thereof, and shall 
 be allowed the same in his accounts. Provided always, that in no 
 case shall any such allowances or compensation exceed the amount 
 now by law permitted to be made to prosecutors and witnesses for 
 the prosecution ; and provided always, that such allowances and 
 compensation shall be allowed and paid as part of the expenses of 
 the prosecution, (w) 
 
 By 32 & 33 Vict. c. 89, s. 9, this part (x) of this Act shall be con- 
 strued as one with the above Act of 30 & 31 Vict. c. 35, which may 
 be cited as the Criminal Law Amendment Act, 1867. 
 
 Sec. 10. Where the officer of the court who, in pursuance of 
 section five of the Criminal Law Amendment Act, 1867, makes out 
 
 (u) R. v. Haines, 5 Cox C. C. 114. Vict. c. 22, s. 7, and Stubs v. Director of 
 
 (v) R. v. Jones, 2 M. C. C. R. 171. Public Prosecutions, 24 Q. B. D. 577. 
 (w) As to the costs to be paid bj- the (x) S. 9 to s. 11. 
 
 Director of Public Prosecutions, see 42 & 43
 
 108 General Provisions. [book i. 
 
 an order for the payment of expenses and compensation to witnesses 
 is paid by salary, or is for the time being allowed under the table of 
 fees relating to his office to take one fee only of fixed amount in 
 respect of his several duties relating to the prosecution of an offender, 
 such officer shall make out and deliver such order without taking any 
 fee for the same, and the said section shall be construed as if all 
 mention of the sum or fee of sixpence were omitted therefrom. 
 
 Sec. 11. Where the fee of sixpence is, in pursuance of section 
 five of the Criminal Law Amendment Act, 1867, as amended by this 
 Act, taken by a clerk of the peace or other officer, the amount of 
 such fees received by him during any year after the passing of this 
 Act shall be included in the total amount of fees in criminal prose- 
 cutions received by him, which is to be ascertained under 18 & 19 
 Vict. c. 126, s. 18, and shall be included in every return or account 
 of fees made or rendered by such clerk of the peace or other officer. 
 
 As to the power of the court to condemn a person convicted of 
 treason or felony to the payment of costs, see 33 & 34 Vict. c. 23, 
 s. 3, post, 109. 
 
 As to a person acquitted being ordered to be paid his costs by the 
 prosecutor under the Vexatious Indictment Acts, see 30 & 31 Vict., 
 c. 35, noticed ante. 
 
 Costs on indictment for libel. — As to a prosecutor or defendant 
 being entitled to recover costs from the other of them in the case of 
 an indictment by a private prosecutor for a libel, see post, ' Libel.' 
 
 Where indictment removed by ' certiorari.' — The enactment 5 W. 
 &M. c. 11, s. 3, relating to costs on a removal by certiorari, is partially 
 considered post, ' Nuisances to Highways.' 
 
 Forfeiture for Felony, &c. 
 
 The 33 & 34 Vict. c. 23, recites that it is expedient to abolish the 
 forfeiture of lands and goods for treason and felony, and to otherwise 
 amend the law relating thereto. By sec. 1, from and after the passing 
 of this Act, no confession, verdict, inquest, conviction, or judgment of, 
 or for any treason or felony, or felo de se, shall cause any attainder or 
 corruption of blood, or any forfeiture, or escheat, provided that noth- 
 ing in this Act shall affect the law of forfeiture consequent upon 
 outlawry. 
 
 Sec. 2 provided nevertheless, that if any person hereafter convicted 
 of treason or felony, for which he shall be sentenced to death, or penal 
 servitude, or any term of imprisonment, with hard labour, or exceeding 
 twelve months, shall at the time of such conviction, hold any military 
 or naval office, or any civil office under the crown, or other public 
 employment, or any ecclesiastical benefice, or any place, office, or 
 emolument in any university, college, or other corporation, or be en- 
 titled to any pension, or superannuation allowance, payable by the 
 public, or out of any public fund, such office, benefice, employment, or 
 place, shall forthwith become vacant, and such pension or superannu- 
 ation allowance or emolument shall forthwith determine and cease to 
 be payable, unless such person shall receive a free pardon from Her
 
 chap. I.] Forfeiture for Felon//. 109 
 
 Majesty within two months after such conviction, or before the filling 
 up of such office, benefice, employment, or place, if given at a later 
 period ; and such person shall become, and (until he shall have suf- 
 fered the punishment to which he had been sentenced, or such other 
 punishment as by competent authority may be substituted for the 
 same, or shall receive a free pardon from Her Majesty) shall continue 
 thenceforth incapable of holding any military or naval office, or any 
 civil office under the crown, or other public employment, or any 
 ecclesiastical benefice, or of being elected, or sitting, or voting as a 
 member of either House of Parliament, or of exercising any right of 
 suffrage or other parliamentary or municipal franchise whatever within 
 England, Wales, or Ireland. 
 
 Sec. 3. It shall be lawful for any court by which judgment shall be 
 pronounced or recorded upon the conviction of any person for treason 
 or felony, in addition to such sentence as may otherwise by law be 
 passed, to condemn such person to the payment of the whole, or any 
 part, of the costs or expenses incurred in and about the prosecution and 
 conviction for the offence of which he shall be convicted, if to such court 
 it shall seem fit so to do ; and the payment of such costs and expenses, 
 or any part thereof, may be ordered by the court to be made out of 
 any moneys taken from such person on his apprehension, or may be 
 enforced at the instance of any person liable to pay, or who may have 
 paid the same, in such and the same manner (subject to the provisions 
 of this Act) as the payment of any costs ordered to be paid by the 
 judgment or order of any court of competent jurisdiction in any civil 
 action or proceeding may for the time being be enforced. Provided, 
 that in the mean time, and until the recovery of such costs and 
 expenses from the person so convicted as aforesaid, or from his estate, 
 the same shall be paid and provided for in the same manner as if this 
 Act had not passed ; and any money which may be recovered in re- 
 spect thereof from the person so convicted, or from his estate, shall 
 be applicable to the reimbursement of any person or fund by whom, or 
 out of which, such costs and expenses may have been paid or defrayed. 
 
 After the conviction of a prisoner for felony, the Central Criminal 
 Court made an order, under sec. 3 of 33 & 34 Vict. c. 23, for the 
 payment of the costs of the prosecution out of the moneys found on 
 the prisoner at the time of his apprehension. The validity of this 
 order being questioned by the trustee in bankruptcy of the prisoner's 
 estate, on the ground that the prisoner had been adjudicated a bank- 
 rupt between the dates of his apprehension and conviction, and that 
 on such adjudication all his property vested in the trustee : Held, 
 that the order was rightly made, the trustee, on adjudication of bank- 
 ruptcy, taking the property of the bankrupt prisoner, subject to 
 the possibility of the Criminal Court making the order in question. 
 Quaere, whether such an order would be valid if the prisoner were 
 adjudicated bankrupt in respect of an act of bankruptcy committed 
 before his apprehension. (?/) 
 
 (y) R. v. Roberts, 12 Cox, C. C. 574, 43 tension, the Criminal Court may make an 
 
 L. J. M. C. 17, et per Blackburn, J. ; 'I order for the payment of the costs ot the 
 
 wish to guard against being supposed to say prosecution out of it. I am inclined to think 
 
 that simply because money is found on the that if moneys belonging to some one else 
 
 person of a prisoner at the time of his appre- are found in his possession, e. </., if the per-
 
 110 General Provisions. [book i. 
 
 Sec. 4. It shall be lawful for any such court as aforesaid, if it shall 
 think fit upon the application of any person aggrieved, and immedi- 
 ately after the conviction of any person for felony, to award any sum 
 of money, not exceeding one hundred pounds, by way of satisfaction 
 or compensation for any loss of property suffered by the applicant 
 through or by means of the said felony, and the amount awarded 
 for such satisfaction or compensation shall be deemed a judgment 
 debt due to the person entitled to receive the same from the person 
 so convicted, and the order for payment of such amount may be 
 enforced in such and the same manner as in the case of any costs 
 ordered by the court to be paid under the last preceding section of 
 this act. (z) 
 
 Sec. 5. The word ' forfeiture,' in the construction of this Act, shall 
 not include any fine or penalty imposed on any convict by virtue of 
 his sentence. 
 
 Sec. 6. The expression ' convict,' as hereinafter used, shall be deemed 
 to mean any person against whom, after the passing of this Act, judg- 
 ment of death, or of penal servitude, shall have been pronounced or 
 recorded by any court of competent jurisdiction in England, Wales, or 
 Ireland, upon any charge of treason or felony. 
 
 By sec. 7, when any convict shall die or be made bankrupt, or shall 
 have suffered any punishment to which sentence of death if pro- 
 nounced or recorded against him may be lawfully commuted, or shall 
 have undergone the full term of penal servitude for which judgment 
 shall have been pronounced or recorded against him, or such other 
 punishment as may by competent authority have been substituted for 
 such full term, or shall have received Her Majesty's pardon for the 
 treason or felony of which he may have been convicted, he shall 
 thenceforth so far as relates to the provisions hereinafter contained, 
 cease to be subject to the operation of this Act. 
 
 Sec. 8. No action at law or suit in equity for the recovery of any 
 property, debt, or damage whatsoever shall be brought by any convict 
 against any person during the time while he shall be subject to the 
 operation of this Act; and every convict shall be incapable, during 
 such time as aforesaid, of alienating or charging any property, or of 
 making any contract, save as hereinafter provided. 
 
 By sec. 9, the Crown may appoint administrators of a convict's prop- 
 son arrested is a banker's clerk, carrying a ment out of them of the costs of the prose- 
 bag of gold to the bank, the banker, who is cution. That power may be exercised by 
 the owner of the money, would have a right the court, notwithstanding every effort which 
 to interfere in such a case against any order the prisoner may make, whilst sui juris, to 
 being made. I also wish to guard myself make away with the moneys. In case of 
 against being supposed to decide that if the bankruptcy intervening — not a bankruptcy 
 prisoner was adjudicated bankrupt by reason by reason of an act of bankruptcy antecedent 
 of an act of bankruptcy committed before his to the arrest — the trustee takes what was 
 arrest, the trustee might not have a right to the property of the bankrupt, and subject to 
 intervene. Nothing appears in the present all the rights of third parties previously 
 case to raise this point. So far as appears, existing. I think there did exist in the 
 the prisoner at the time of his arrest was in present case, at the time of the adjudication 
 possession of moneys which he might have of bankruptcy, a vested right, or lien, or 
 disposed of in any way he pleased. Then hold, by virtue of the statute, on the moneys 
 sect. 3 of the Act for Abolishing Forfeitures found on the person of the prisoner at the 
 for Treason and Felony provides that such time of his arrest, and that consequently the 
 moneys shall be subject to the power of the orcbr was rightly made.' 
 criminal court, to make an order for the pay- (z) See R. v. Lovetl, 11 Cox, C. C. 602.
 
 chap. I.] Forfeiture for Felony. Ill 
 
 erty. By sec. 13, they may pay out of the property costs of the prose- 
 cution, &c, and the debts and liabilities of the convict. 
 
 By sec. 15, the administrator may cause to be paid or satisfied, out 
 of such property, such sum of money by way of satisfaction or com- 
 pensation for any loss of property or other injury alleged to have 
 been suffered by any person through or by means of any alleged 
 criminal or fraudulent act of such convict, as to him shall seem just, 
 although no proof of such alleged criminal or fraudulent act may 
 have been made in any court of law or equity ; and all claims to any 
 such satisfaction or compensation may be investigated in such manner 
 as the administrator shall think fit, and the decision of the adminis- 
 trator thereon shall be binding : Provided always, that nothing in this 
 Act shall take away or prejudice any right, title, or remedy to which 
 any person alleging himself to have suffered any such loss or injury 
 would have been entitled by law if this Act had not passed. 
 
 By sec. 17, the several powers herein before given to the said admin- 
 istrator, or any of them, may be exercised by him in such order and 
 course, as to priority of payments or otherwise, as he shall think fit ; 
 and all contracts of letting or sale, mortgages, conveyances, or trans- 
 fers of property, bona fide made by the said administrator under the 
 powers of this Act, and all payments or deliveries over of property, 
 oona fide made by or under the authority of the said administrator for 
 any of the purposes hereinbefore mentioned, shall be binding ; and the 
 propriety thereof, and the sufficiency of the grounds on which the said 
 administrator may have exercised his judgment or discretion in respect 
 thereof, shall not be in any manner called in question by such convict, 
 or by any person claiming an interest in such property by virtue of 
 this Act. 
 
 By sec. 18, the property reverts to the convict or his representatives 
 on completion of sentence, pardon, or death. 
 
 By sec. 21, if no administrator is appointed, a curator may be ap- 
 pointed by justices. 
 
 By sec. 27, the execution of judgments against convicts is pro- 
 vided for. 
 
 By 33 & 34 Vict. c. 29, s. 14, every person convicted of felony 
 shall for ever be disqualified from selling spirits by retail, and no 
 licence to sell spirits by retail shall be granted to any person who 
 shall have been so convicted as aforesaid; and if any person shall, 
 after having been so convicted as aforesaid, take out or have any 
 licence to sell spirits by retail, the same shall be void to all intents 
 and purposes ; and every person who, after being so convicted as 
 aforesaid, shall sell any spirits by retail in any manner whatever, shall 
 incur the penalty for doing so without a licence. 
 
 By 9 Geo. 4, c. 32, s. 3, after reciting that it is expedient to prevent 
 all doubts respecting the civil rights of persons convicted of felonies, 
 not capital, who have undergone the punishment to which they were 
 adjudged, it is enacted : That where any offender hath been or shall be 
 convicted of any felony not punishable with death, and hath endured 
 or shall endure the punishment to which such offender hath been or 
 shall be adjudged for the same, the punishment so endured hath and 
 shall have the like effect and consequences as a pardon under the
 
 112 General Provisions. [book i. 
 
 great seal as to the felony whereof the offender was so convicted: 
 Provided always, that nothing herein contained, nor the enduring 
 of such punishment, shall prevent or mitigate any punishment to 
 which the offender might otherwise be lawfully sentenced on a 
 subsequent conviction for any other felony.
 
 CHAPTER THE SECOND. 
 
 OF PERSONS CAPABLE OF COMMITTING CRIMES. 
 
 It is a general rule that no person shall be excused from punishment 
 for disobedience to the laws of the country, unless he be expressly 
 defined and exempted by the laws themselves, (ft) The inquiry, 
 therefore, as to those who are capable of committing crimes, will best 
 be disposed of by considering the several pleas and excuses which may 
 be urged on behalf of a person who has committed a forbidden act, as 
 grounds of exemption from punishment. 
 
 Those pleas and excuses must be founded upon the want or defect 
 of will in the party by whom the act has been committed. For with- 
 out the consent of the will, human actions cannot be considered as 
 culpable ; nor where there is no will to commit an offence, is there 
 any just reason why a party should incur the penalties of a law made 
 for the punishment of crimes and offences. (V) The cases of want 
 or defect of will seem to be reducible to four heads : I. Infancy. 
 II. Non compos mentis. III. Subjection to the power of others. 
 IV. Ignorance. 
 
 Infants. — I. The full age of man or woman by the law of England 
 is twenty-one years : (c) under which age a person is termed an infant, 
 and is exempted from punishment in some cases of misdemeanors and 
 offences that are not capital. (fZ) But the nature of the offence will 
 make differences which should be observed. Thus, if it be any no- 
 torious breach of the peace, as a riot, battery, or the like, an infant 
 above the age of fourteen is equally liable to suffer as a person of 
 the full age of twenty-one ; (e) and if an infant judicially perjure him- 
 self in point of age, or otherwise, he shall be punished for the perjury ; 
 and he may be indicted for cheating with false dice, &c. : ( /) but 
 if the offence charged by the indictment be a mere non-feasance x 
 (unless it be of such a thing as the party be bound to by reason 
 of tenure or the like, as to repair a bridge, &c), (g) there, in some 
 cases, he shall be privileged by his non-age, if under twenty-one, 
 though above fourteen years ; because laches in such a case shall 
 not be imputed to him. (h) 
 
 la) 4 Blac. Com. 20. (e) 4 Rlac. Com. 23, 1 Hale, 20. Co. 
 
 (b) 1 Hale, 14. Lit. 247 b. 
 
 (c) It is the full age of male or female (/) Bao. Abr. Inf. (H.) Sid. 258. See 
 according to common speech. Lit. sec. 104, 48 & 49 Vict. c. 69, s. 4. 
 
 259. (</) 2 Inst. 703. R. v. Sutton, 3 Ad. & 
 
 (d) 1 Hale, 20. E. 597, post, Bridges. 
 
 (h) 1 Hale, 20. Bac. Abr. Inf. (H.). 
 
 American Note. 
 
 1 In America a mere child cannot be made criminally responsible for a nuisance created 
 on his land, P. v. Townsend, 3 Hill, 479.
 
 114 Of Persons capable of [book i. 
 
 It is said that if an infant of the age of eighteen years be convicted 
 of a disseisin with force, yet he shall not be imprisoned ; (i) and the 
 law is said to be, that though an infant at the age of eighteen or even 
 fourteen, by his own acts may be guilty of a forcible entry, and may 
 be fined for the same, yet he cannot be imprisoned, because his infancy 
 is an excuse by reason of his indiscretion ; and it is not particularly 
 mentioned in the statute against forcible entries, that he shall be com- 
 mitted for such fine, (j) An infant, however, cannot be guilty of a 
 forcible entry or disseisin by barely commanding one or by assenting 
 to one to his use; because every command or assent of this kind by 
 a person under such incapacity is void ; but an actual entry by an 
 infant into another's freehold gains the possession and makes him a 
 disseisor, (k) 
 
 With regard to capital crime the law is more minute and circum- 
 spect ; distinguishing with greater nicety the several degrees of age 
 and discretion: though the capacity of doing ill or contracting guilt 
 is not so much measured by years and days as by the strength of 
 the delinquent's understanding and judgment. (/) But within the age 
 of seven years an infant cannot be punished for any capital offence, 
 whatever circumstances of a mischievous discretion may appear ; for 
 ex presumptione juris such an infant cannot have discretion ; and 
 against this presumption no averment shall be admitted, (m) An 
 infant under the age of seven years cannot be guilty of felony ; and 
 therefore a defendant cannot justify taking such an infant into cus- 
 tody and taking him before a magistrate upon the ground that he 
 had been caught stealing a piece of wood, (mm) 
 
 On the attainment of fourteen years of age, the criminal actions 
 of infants are subject to the same modes of construction as those of 
 the rest of society ; for the law presumes them at those years to be doli 
 capaces, and able to discern between good and evil, and therefore 
 subjects them to capital punishments as much as if they were of full 
 age. (n) But during the interval between fourteen years and seven} an 
 infant shall be prima facie deemed to be doli incapax, and presumed 
 to be unacquainted with guilt ; yet this presumption will diminish 
 
 (i) 1 Hale, 21. note (1). 4 Blac. Com. 23. A pardon was 
 
 (j) Bac. Abr. Inf. (H.). Dalt. 422. Co. granted to an infant within the age of seven 
 
 Lit. 357. And see 1 Hawk. P. C. c. 64, s. 35, years, who was indicted for homicide ; the 
 
 that the infant ought not to be imprisoned jury having found that he did the fact before 
 
 because he shall not be subject to corporal he was seven years old. 1 Hale, 27 (edit, 
 
 punishment by force of the general words of 1800), note (c). 
 
 any statute wherein he is not expressly (mm) Marsh v. Loader, 14 C. B. (N. S). 
 
 named. 535. 
 
 (k) Bac. Abr. Inf. (H.). Co. Lit. 357. 1 (») Dr. & Stu. c. 26. Co. Lit. 79, 171, 
 
 Hawk. P. C. c. 64, s. 35. 247. Dalt. 476, 505. 1 Hale, 25. Bac. 
 
 (I) 4 Blac. Com. 23. Abr. Inf. A. & H. 
 
 (?») 1 Hale, 27, 28. 1 Hawk. c. 1, s. 1, 
 
 American Note. 
 
 1 In different States of America there are 451, and the death penalty will not be in- 
 different ages fixed under which an infant is flicted when the prisoner is under seventeen. 
 doli incapax. Thus in Texas the infant In Illinois the ages respectively are ten and 
 must be over nine years of age, and if under fourteen. Angelo v. P., 96 111. 209 ; 36 Am. 
 thirteen evidence must be given of his crim- R. 132. 
 inal capacity, Parker v. S., 20 Tex. Ap.
 
 chap, ii.] Committing Crimes. — Infancy. 115 
 
 with the advance of the offender's years, and will depend upon the 
 particular facts and circumstances of his case. The evidence of malice, 
 however, which is to supply age, should be strong and clear beyond 
 .all doubt and contradiction ; but if it appear to the court and jury 
 that the offender was doli capax, and could discern between good and 
 evil, he may be convicted and suffer death, (o) Thus, it is said that 
 an infant of eight years old may be guilty of murder, and shall be 
 hanged for it, (j)) and where an infant between eight and nine years 
 ■old was indicted, and found guilty of burning two barns, and it 
 appeared, upon examination, that he had malice, revenge, craft, 
 and cunning, he had judgment to be hanged, and was executed 
 accordingly, (q) 
 
 An infant of the age of nine years, having killed an infant of the 
 like age, confessed the felony ; and, upon examination, it was found 
 that he hid the blood and the body. The justices held that he ought 
 to be hanged ; but they respited the execution that he might have a 
 pardon, (r) Another infant, of the age of ten years, who had killed 
 his companion and hid himself was, however, actually hanged ; upon 
 the ground that it appeared by his hiding that he could discern 
 between good and evil ; and malitia swpplet cetatem. (s) And a girl 
 of thirteen was burnt for killing her mistress, (t) Whenever a person 
 under the age of fourteen is charged with committing a felony, the 
 proper course is to leave the case to the jury to say whether, at the 
 time of committing the offence, such person had guilty knowledge 
 that he was doing wrong, (u) 
 
 In 1748, W. York, a boy of ten years of age, was convicted for the 
 murder of a girl of about five years of age; but Willes, C. J., out of 
 regard to the tender years of the prisoner, respited execution till he 
 ■could take the opinion of the rest of the judges, whether it was proper 
 to execute him or not. 
 
 The boy and girl were parish children, under the care of a parish- 
 ioner ; and on the day of the murder he and his wife went out to 
 their work, and left the children in bed together. When they 
 returned, the girl was missing ; and the boy, being asked what was 
 become of her, answered that he had helped her up and put on her 
 clothes, and she had gone he knew not whither. Upon this, strict 
 search was made for the child. During this search, the man observed 
 that a heap of dung near the house had been newly turned up ; and, 
 upon removing the upper part of the heap, he found the body of the 
 child about a foot's depth under the surface, cut and mangled in a 
 most barbarous and horrid manner. Upon this discovery the boy, 
 
 (<>) ] Hale, 25, 27. 4 Blac. Com. 32. age there can be no guilt of a capital offence 
 
 The civil law, as to capital punishments, 1 Hale, 17-19. 
 distinguished the ages into four ranks : (p) Dalt. Just. c. 147. 
 
 1. JEtas pubertatis plena, which is eighteen (q) Dean's case, 1 Hale, 25, note (u). 
 
 years. 2. JEtas pubertatis, or pubertas gen- (>•) 1 Hale, 27. F. Corone, 57. B. 
 
 orally, which is fourteen years, at which Corone, 133. 
 
 time persons were likewise presumed to be (s) Spigurnal's case, 1 Hale, 26. Fit/.. 
 
 doli capaces. 3. JEtas pubertati proximo,; Rep. Corone, 118. 
 
 but in this the Pwoman lawyers were divided, (7) Alice de Waldborough's case, 1 Hale, 
 
 some assigning it to ten years and a half, 26. 
 
 others to eleven ; before which the party was (w) R. v. Owen, 4 C. & P. 386, Little- 
 
 not presumed to be doli capax. 4. Infantia, dale, J. R. v. Smith, 1 Cox, C. C. 260, 
 
 which lasts till seven years, within which Erie.
 
 116 Of Persons Capable of [book i. 
 
 who was the only person capable of committing the fact, that was 
 left at home with the child, was charged with the fact, which he 
 stiffly denied. When the coroner's jury met, the boy was again 
 charged, but persisted still to deny the fact. At length, being close 
 interrogated, he fell to crying, and said he would tell the whole truth. 
 He then said that the child had been used to foul herself in bed ; 
 that she did so that morning (which was not true, for the bed was 
 searched and found to be clean), that thereupon he took her out of 
 the bed and carried her to the dung-heap, and with a large knife, 
 which he found about the house, cut her in the manner the body 
 appeared to be mangled, and buried her in the dung-heap ; placing 
 the dung and straw that was bloody under the body, and covering it 
 up with what was clean ; and having so done, he got water and 
 washed himself as clean as he could. The boy was the next morning 
 carried before a neighbouring justice of the peace, before whom he 
 repeated his confession, with all the circumstances he had related to 
 the coroner and his jury. The justice of the peace very prudently 
 deferred proceeding to a commitment, until the boy should have an 
 opportunity of recollecting himself. Accordingly he warned him of 
 the danger he was in if he should be thought guilty of the fact he 
 stood charged with, and admonished him not to wrong himself : and 
 then ordered him into a room where none of the crowd that attended 
 should have access to him. When the boy had been some hours in 
 this room, where victuals and drink were provided for him, he was 
 brought a second time before the justice, and then he repeated his 
 former confession ; upon which he was committed to gaol. On the 
 trial, evidence was given of the declarations before mentioned to have 
 been made before the coroner and his jury, and before the justice of 
 the peace ; and of many declarations to the same purpose which the 
 boy made to other people after he came to gaol, and even down to the 
 day of his trial ; for he constantly told the same story in substance, 
 commonly adding that the devil put him upon committing the fact. 
 Upon this evidence, with some other circumstances tending to cor- 
 roborate the confessions, he was convicted. The judges having taken 
 time to consider this report, unanimously agreed ; 1. That the decla- 
 rations stated in the report were evidence proper to be left to the 
 jury. 2. That, supposing the boy to have been guilty of this fact, 
 there were so many circumstances stated in the report which were 
 undoubtedly tokens of what Lord Hale calls a mischievous discretion, 
 that he was certainly a proper subject for capital punishment, and 
 ought to suffer; for it would be of very dangerous consecpience to 
 have it thought that children may commit such atrocious crimes 
 with impunity. That there are many crimes of the most heinous 
 nature, such as (in the present case) the murder of young children, 
 poisoning parents or masters, burning houses, &c, which children are 
 very capable of committing, and which they may in some circum- 
 stances be under strong temptations to commit ; and, therefore, though 
 the taking away the life of a boy of ten years old might savour of 
 cruelty, yet, as the example of that boy's punishment might be a 
 means of deterring other children from the like offences, and as the 
 sparing the boy, merely on account of his age, would probably have a 
 quite contrary tendency ; in justice to the public, the law ought to
 
 chap, ii.] Committing Crimes. — Infancy. 117 
 
 take its course ; unless there remained any doubt touching his guilt. 
 In this general principle all the judges concurred ; but two or three 
 of them, out of great tenderness and caution, advised the chief justice 
 to send another reprieve for the prisoner; suggesting that it might 
 possibly appear, on further inquiry, that the boy had taken this 
 matter upon himself at the instigation of some person or other, who 
 hoped by this artifice to screen the real offender from justice. Accord- 
 ingly, the chief justice granted one or two more reprieves ; and desired 
 the justice of the peace who took the boy's examination, and also 
 some other persons, in whose prudence he could confide, to make the 
 strictest inquiry they could into the affair, and report to him. At 
 length, he, receiving no further light, determined to send no more 
 reprieves, and to leave the prisoner to the justice of the law at the 
 expiration of the last ; but, before the expiration of that reprieve, 
 execution was respited till further order, by warrant from one of the 
 secretaries of state; and at the summer assizes, 1757, the prisoner 
 had the benefit of His Majesty's pardon, upon condition of his enter- 
 ing immediately into the sea service, (v) 
 
 In the case of rape, the law presumes that an infant under the age 
 of fourteen years is unable to commit the crime ; and therefore he 
 cannot be guilty of it. (w) So also, for the like reason, such an infant 
 cannot be guilty of an assault with intent to commit a rape, (x) or 
 of carnally knowing a girl under thirteen years of age, (y) but he can be 
 convicted, on an indictment for this offence, of an indecent assault, (z) 
 And this presumption cannot be rebutted, and evidence is not admis- 
 sible to prove that the infant is in fact competent to commit any such 
 offence, (a) 1 But this presumption is upon the ground of impotency 
 rather than the want of discretion ; for he may be a principal in the 
 second degree, as aiding and assisting in this offence as well as in 
 other felonies, if it appear by sufficient circumstances that he had a 
 mischievous discretion, (b) 
 
 An infant of over fourteen years of age may be convicted of lar- 
 ceny as a bailee, since bailment is not a contract but a delivery 
 upon condition, (c) 
 
 It is said that an act making a new felony does not extend to an 
 infant under the age of discretion, namely, fourteen years old, (d) and 
 that general statutes which give corporal punishment are not to ex- 
 
 (v) York's case, Fost. 70, et seq. (z) 48 & 49 Vict. c. 69, s. 9. R. v. Wil- 
 
 (w) R. v. Groombridge, 7 C. & P. 582. liams (1893), 1 Q. B. 320. 
 Gaselee, J., after consulting Lord Abinger, (a) R. v. Phillips, and R. v. Jordan, 
 
 C. B., as to whether the words 'every per- supra. 
 son ' in the 9 Geo. 4, c. 31, s. 16, altered the (b) 1 Hale, 630. 2 
 
 former law. (c) R. v. McDonald, 15 Q. B. D. 323. 
 
 (a;) R. v. Eldershaw, 3 C. & P. 396, See judgment of Lord Coleridge in R. v. 
 
 Vaughan, J. R. v. Philips, 8 C. & P. 736, Ashwell, 16 Q. B. D. 190, Vol. II. 
 Patteson, J. (d) 1 Hale, 706. Eyston and Studde'a 
 
 (y) R. v. Jordan, 9 C. & P. 118, Wil- case, Plowd. Com. 465, a. And see 1 Hale, 
 
 liams, J. R. v. Waite (1892), 2 Q. B. 600. 21,22. Bac. Abr. Infancy (H). 
 
 American Notes. 
 1 In America, however, evidence is ad- S. 14 Ohio, 222 ; S. v. Sam, 1 Wis. 300 ; 
 missible to prove that a boy under fourteen Bishop, i. 373. 
 
 is mature, and therefore capable of rape. 2 See S. o. Jones, 83 N. C. 605 ; 35 Am. 
 
 S. v. Pugh, 7 Jones (Law), 61 ; P. v. Ran- R. 586. 
 dolph, 2 Parker, C. R, 174 ; Williams v.
 
 118 Of Persons capable of [book i. 
 
 tend to infants ; and that, therefore, if an infant be convicted in 
 ravishment of ward, he shall not be imprisoned, though the statute 
 of Merton, c. 6, be general in that case, (e) But this must be under- 
 stood, where the corporal punishment is, as it were, but collateral to 
 the offence, and not the direct intention of the proceeding against 
 the infant for his misdemeanor ; in many cases of which kind the 
 infant under the age of twenty-one shall be spared, though possibly 
 the punishment be enacted by Parliament. (/) 
 
 But where a fact is made felony or treason, it extends as well 
 to infants, if above fourteen years, as to others. And this appears 
 by several Acts of Parliament, as by 1 Jac. 1, c. 11, (g) of felony for 
 marrying two wives, in which there was a special exception of mar- 
 riages within the age of consent ; so that if the marriage were above 
 the age of consent, though within the age of twenty-one years, it was 
 not exempted from the penalty. So by the 21 Hen. 8, c. 7, (h) concern- 
 ing felony by servants that embezzle their masters' goods delivered to- 
 them, there was a special provision that it should not extend to ser- 
 vants under the age of eighteen years, who certainly had been within 
 the penalty, if above the age of discretion, namely, fourteen years,, 
 though under eighteen years, unless there had been a special provision 
 to exclude them. And so by the 12 Ann. c. 7, (h) (by which it was 
 made felony without benefit of clergy to steal goods to the value of 40s. 
 out of a house, though the house were not broken open), where appren- 
 tices who should rob their masters were excepted out of the Act. (i) 
 
 In many cases of crimes committed by infants, the judges will in 
 prudence respite the execution in order to get a pardon : and it is said 
 that if an infant apparently wanting discretion be indicted and found 
 guilty of felony, the justices themselves may dismiss him without a 
 pardon. (J) But this authority to dismiss him must be understood of 
 a reprieve before judgment ; or of a case where the jury find the pris- 
 oner within the age of seven years, or not of sufficient discretion to 
 judge between good and evil, (k) 
 
 Persons non compos mentis. — II. It has been considered, that 
 there are four kinds of persons who may be said to be non compos : 
 — 1. An idiot. 2. One made non compos by sickness. 3. A lunatic. 
 4. One that is drunk. (I) But it should be observed, that every 
 person at the age of discretion is presumed sane, unless the contrary 
 is proved ; and if a lunatic has lucid intervals, the law presumes the 
 offence of such person to have been committed in a lucid interval,, 
 unless it appears to have been committed in the time of his dis- 
 temper, (m) 
 
 Idiots. — An idiot is a fool or madman from his nativity, and one 
 who never has any lucid intervals : and such an one is described as 
 
 (e) Bac. Abr. Infancy (H). Plowd. 364. (k) 1 Hale, 27. 1 Hawk. P. C. c. 1, 
 
 1 Hale, 21. s. 8. And, quccre, whether in any case of 
 
 (/) Bac. Abr. Infancy (H). 1 Hale, 21. an infant convicted by a jnry, the judge 
 
 \g) Repealed, 9 Geo. 4, c. 31, s. 1. would take upon himself to dismiss him. It 
 
 (k) Repealed, 7 & 8 Geo. 4, c. 27. is submitted that the regular course would 
 
 (/) Bac. Abr. Infancy (H). Co. Lit. be to respite execution, and recommend the 
 
 147. 1 Hale, 21, 22. As to indicting an prisoner for a pardon. 
 
 infant for an offence under the Bankruptcy (I) Co. Lit. 247. Beverley's case, 4 Co. 
 
 Acts, see R. v. Wilson, 5 Q. B. D. 28, post, 124. 
 
 sub tit. Bankruptcy. (m) 1 Hale, 33, 34. 
 
 (j) 35 Hen. 6, 11 and 12.
 
 CHAP. II.] 
 
 Committing Crimes. — Idiots. 
 
 119 
 
 a person that cannot number twenty, tell the clays of the week, does 
 not know his father or mother, his own age, &c. : but these are 
 mentioned as instances only ; for whether idiot or not is a question of 
 fact for the jury, (n) One who is surdus et mutus a nativitate is 
 in presumption of law an idiot, and the rather because he has no 
 possibility to understand what is forbidden by law to be done, or 
 under what penalties ; but if it appear that he has the use of under- 
 standing, which many of that condition discover by signs to a very 
 great measure, then he may be tried, and suffer judgment and execu- 
 tion ; though great caution should be used in such a proceeding, (o) 
 
 A person made non compos mentis by sickness, or, as it has been 
 sometimes expressed, a person afflicted with dementia accidentalis vet 
 adventitia, is excused in criminal cases from such acts as are com- 
 mitted while under the influence of his disorder, (p) Several causes 
 have been assigned for this disorder ; such as the distemper of the 
 humours of the body ; the violence of a disease, as fever or palsy ; or 
 the concussion or hurt of the brain ; and, as it is more or less violent, 
 it is distinguishable in kind or degree, from a particular dementia, in 
 respect of some particular matters, to a total alienation of the mind, 
 or complete madness, (q) 
 
 (n) Bac. Abr. Idiots, &c. (A). Dy. 25. 
 Moor, 4, pi. 12. Bro. Idiot, 1. F. N. B. 
 233. 
 
 (o) 1 Hale, 34. And see the note 
 where it is said that according to 43 Assis. 
 pi. 30, and 8 Hen. 4, c. 2, if a prisoner 
 stands mute, it shall be inquired whether it 
 be wilful, or by the act of God ; from whence 
 Crompton infers that if it be by the act of 
 God, the party shall not suffer, Crompt. 
 Just. 29, a. But if one who is both deaf 
 and dumb may discover by signs that he 
 hath the use of understanding, much more 
 may one who is only dumb, and consequently 
 such a one may be guilty of felony. It may 
 be observed, that from the humane exertions 
 of many ingenious and able persons, and from 
 the extensive charitable institutions for the 
 instruction of the deaf and dumb, many of 
 those unfortunate people have at the present 
 day a very perfect knowledge of right and 
 wrong. In Steel's case, 1 Leach, 451, a 
 prisoner, who could not hear, and could 
 not be prevailed upon to plead, was found 
 mute by the visitation of God, and then 
 tried," found guilty, and sentenced to be 
 transported. And in Jones's case, 1 Leach, 
 102, where the prisoner (who was indicted on 
 12 Ann. c. 7, for stealing in a dwelling- 
 house) on being put to the bar appeared to 
 be deaf and dumb, and the jury found a ver- 
 dict, ' Mute by the visitation of God ; ' after 
 winch a woman was examined upon her oath, 
 to the fact of her being able to make him 
 understand what others said, which she said 
 she could do by means of signs, such prisoner 
 was arraigned, tried, and convicted of the 
 simple larceny. The proper course in such 
 cases is, 1. To swear a jury to determine 
 whether the prisoner be mute of malice or by 
 
 the visitation of God. 2. Whether he be 
 able to plead. 3. Whether he be sane or 
 not : on which issue the question is, whether 
 he is of sufficient intellect to comprehend the 
 course of the proceedings on the trial so as to 
 be able to make a proper defence. R. v. 
 Pritchard, 7 C. & P. 303, Alderson, B. ; R. 
 v. Dyson, ibid. 305, n. (a), Parke, B.; S. C. 
 1 Lewin, 64. In R. v. Pritchard, the jury 
 were sworn on each of the three issues sepa- 
 rately. See R. v. Dyson, for the form of the 
 oath administered to the interpreter. See 
 Thompson's case, 2 Lewin, 137, where the 
 prisoner being deaf and dumb, but able to 
 read, the indictment was handed to him with 
 the usual questions written upon paper, and 
 he wrote his plea on paper. The jurors' 
 names were then handed to him, with the 
 question, ' whether he objected to any of 
 them ? ' and he wrote for answer, ' No. ' The 
 judge's note of the evidence of each witness 
 was" handed to him, and he was asked in 
 writing, if he had any question to put. In 
 a case of misdemeanor, after a jury had 
 found that the prisoner was mute by the 
 visitation of God, but was of sound mind, 
 his counsel was permitted to plead not guilty 
 for him, and the trial proceeded in the usual 
 manner, and the evidence was not inter- 
 preted to the prisoner. R. v. Whitfield, 3 
 C. & K. 121, Williams, J. Where a pris- 
 oner, on being brought up to be arraigned, 
 stands mute or it appears questionable 
 whether he be sane or not, the proper course 
 is to swear a jury to try the question, as it is 
 for them and not for the court to decide 
 whether the prisoner stands mute of malice, 
 or is insane. R. v. Israel, 2 Cox. C. C. 263. 
 
 (p) 1 Hale, 30. Bac. Abr. Idiots (A). 
 
 (?) 1 Hale, 30.
 
 120 Of Persons capable of [book i. 
 
 Lunatics. — A lunatic is one labouring also under a species of the 
 ■dementia accidentalis vel adventitia, but distinguishable in this, that 
 he is afflicted by his disorder only at certain periods and vicissitudes ; 
 having intervals of reason. Such a person during his frenzy is entitled 
 to the same indulgence as to his acts, and stands in the same degree 
 with one whose disorder is fixed and permanent, (r) The name of 
 lunacy was taken from the influence which the moon was supposed 
 to have in all disorders of the brain ; a notion which has been ex- 
 ploded by the sounder philosophy of modern times. 
 
 The prevailing distinction in law is between idiocy and lunacy ; the 
 first, & fatuity a nativitate, or dementia naturalis, which excuses the 
 party as to his acts ; the other, accidental or adventitious madness, 
 which, whether permanent and fixed, or with lucid intervals, goes 
 under the name of lunacy, and excuses equally with idiocy as to acts 
 done during the frenzy, (s) 
 
 The great difficulty in cases of this kind is to determine where a 
 person shall be said to be so far deprived of his senses and memory 
 as not to have any of his actions imputed to him ; or where, not- 
 withstanding some defects of this kind, he still appears to have so 
 much reason and understanding as will make him accountable for 
 his actions. Lord Hale, speaking of partial insanity, says, that it 
 is the condition of very many, especially melancholy persons, who for 
 the most part discover their defect in excessive fears and griefs, and 
 yet are not wholly destitute of the use of reason ; and that this par- 
 tial insanity seems not to excuse them in the committing of any capi- 
 tal offence. And he says further, 'Doubtless most persons that are 
 felons of themselves and others are under a degree of partial insanity 
 when they commit these offences : it is very difficult to define the 
 invisible line that divides perfect and partial insanity ; but it must 
 rest upon circumstances duly to be weighed and considered both by 
 the judge and jury, lest on the one side there be a kind of inhumanity 
 towards the defects of human nature, or, on the other side, too great 
 an indulgence given to great crimes.' And he concludes by saying, ' the 
 best measure I can think of is this : such a person as, labouring under 
 melancholy distempers, hath yet ordinarily as great understanding as 
 ordinarily a child of fourteen years hath, is such a person as may be 
 guilty of treason or felony.' (t) 
 
 In the case of Lord Ferrers, who was tried before the House of 
 Lords for murder, it was proved that his lordship was occasionally 
 insane, and incapable from his insanity of knowing what he did, or 
 judging of the consequences of his actions. But the murder was de- 
 liberate ; and it appeared that when he committed the crime he had 
 capacity sufficient to form a design and know its consequences. It was 
 urged, on the part of the prosecution, that complete possession of rea- 
 son was unnecessary to warrant the judgment of the law, and that it 
 was sufficient if the party had such possession of reason as enabled him 
 to comprehend the nature of his actions, and discriminate between 
 moral good and evil. And he was found guilty and executed, (u) 
 
 (r) 4 Co. 125. Co. Lit. 247. 1 Hale, 31. (t) 1 Hale, 30. 
 
 (s) Bac. Abr. Idiots, &c. (A.). 4 Co. (u) Lord Ferrers' case, 19 St. Tri. (by 
 
 125. Howell), 947.
 
 chap, ii.] Committing Crimes. — Lunacy, Etc. 121 
 
 In Arnold's case, who was tried for maliciously shooting at Lord 
 Onslow, it appeared clearly that the prisoner was, to a certain extent, 
 deranged, and that he had greatly misconceived the conduct of Lord 
 Onslow; but it also appeared that he had formed a regular design, 
 and prepared the proper means for carrying it into effect. Tracey, J., 
 told the jury, that where a person has committed a great offence, the 
 exemption of insanity must be very clearly made out before it is 
 allowed ; that it is not every kind of idle and frantic humour of a 
 man, or something unaccountable in his actions, which will show him 
 to be such a madman as is to be exempted from punishment; but 
 that where a man is totally deprived of his understanding and mem- 
 ory, and does not know what he is doing, any more than an infant, or 
 a wild beast, he will properly be exempted from the punishment of 
 the law. (v) 
 
 In Parker's case, who was indicted for aiding the King's enemies, 
 by entering into the French service in time of war between France 
 and this country, the defence was rested upon the ground of in- 
 sanity ; and a witness on his behalf stated, that his general character 
 from a child was that of a person of very weak intellect ; so weak 
 that it excited surprise in the neighbourhood when he was accepted 
 for a soldier. But the evidence for the prosecution had shown the 
 act to have been done with considerable deliberation and possession 
 of reason; and that the prisoner, who was a marine, having been 
 captured by the French, and carried into the Isle of France, after a 
 confinement of about six weeks, entered voluntarily into the French 
 service, and stated to a captive comrade that it was much more agree- 
 able to be at liberty and have plenty of money than remain confined 
 in a dungeon. The Attorney-General replied to this defence of in- 
 sanity, that before it could have any weight in rebutting a charge so 
 clearly made out, the jury must be properly satisfied that at the time 
 when the crime was committed the prisoner did not really know right 
 from wrong. And the jury, after hearing the evidence summed up, 
 without hesitation pronounced the prisoner guilty, (w) 
 
 T. Bowler was tried on the 2d July, 1812, for wounding William Bur- 
 rowes. The defence set up for the prisoner was insanity, occasioned by 
 epilepsy ; and it was deposed by the prisoner's housekeeper, that he was 
 seized with an epileptic fit on the 9th July, 1811, and was brought 
 home apparently lifeless, since which time she had perceived a great 
 alteration in his conduct and demeanor ; that he would frequently rise 
 at nine o'clock in the morning, eat his meat almost raw, and lie on the 
 grass exposed to the rain ; and that his spirits were so dejected that it 
 was necessary to watch him, lest he should destroy himself. The 
 keeper of a lunatic asylum deposed, that it was characteristic of 
 insanity occasioned by epilepsy for the patient to imbibe violent anti- 
 pathies against particular individuals, even his dearest friends, and to 
 have a desire of taking vengeance upon them upon causes wholly im- 
 aginary, which no persuasion could remove, and that yet the patient 
 might be rational and collected upon every other subject. He had no 
 doubt of the insanity of the prisoner, and said he could not be de- 
 
 (v) Arnold's case, MS. Collision on Lun- prisoner guilty ; but at Lord Onslow's re- 
 acy, 475. 8 St. Tri. 317. 16 St. Tri. (by quest he was reprieved. 
 Howell), 764, 765. The jury found the (w) Parker's case, 1812, Collis. 477.
 
 122 Of Persons capable of [[book i. 
 
 ceived by assumed appearances. A commission of lunacy was also 
 produced, dated June 17, 1812, and an inquisition taken upon it, 
 whereby the prisoner was found insane, and to have been so from 
 March 30th. (./;) Le Blanc, J., told the jury, that it was for them to 
 determine whether the prisoner, when he committed the offence with 
 which he stood charged, was incapable of distinguishing right from 
 wrong, or under the influence of any illusion in respect of the prose- 
 cutor which rendered his mind at the moment insensible of the nature 
 of the act he was about to commit ; since in that case he would not 
 be legally responsible for his conduct. On the other hand, provided 
 they should be of opinion that when he committed the offence he was 
 capable of distinguishing right from wrong, and not under the influ- 
 ence of such an illusion as disabled him from discerning that he was 
 doing a wrong act, he would be amenable to the justice of his country, 
 and guilty in the eye of the law. The jury, after considerable delib- 
 eration, pronounced the prisoner guilty, (y) 
 
 In Bellingham's case, who was tried for the murder of Mr. Perceval, 
 a part of the prisoner's defence was insanity ; and upon this part of 
 the case, Mansfield, C. J., stated to the jury, that in order to support 
 such a defence it ought to be proved by the most distinct and unques- 
 tionable evidence that the prisoner was incapable of judging between 
 right and wrong ; that in fact it must be proved beyond all doubt, 
 that at the time he committed the atrocious act with which he stood 
 charged, he did not consider that murder was a crime against the 
 laws of God and nature ; and that there was no other proof of in- 
 sanity which would excuse murder, or any other crime. That in the 
 species of madness called lunacy, where persons are subject to tem- 
 porary paroxysms, in which they are guilty of acts of extravagance, 
 such persons committing crimes when they are not affected by the 
 malady would be, to all intents and purposes, amenable to justice ; 
 and that so long as they could distinguish good from evil they would 
 be answerable for their conduct. And that in the species of insanity 
 in which the patient fancies the existence of injury, and seeks an 
 opportunity of gratifying revenge by some hostile act, if such a per- 
 son lie capable in other respects of distinguishing right from wrong, 
 there would be no excuse for any act of atrocity which he might com- 
 mit under this description of derangement, (z) 
 
 So where on an indictment for murder, it appeared that the pris- 
 oner laboured under a notion that the inhabitants of Hadleigh, and 
 particularly the deceased, were continually issuing warrants against 
 him with intent to deprive him of his liberty and life, the judge who 
 tried the case told the jury that ' they must be satisfied, before they 
 could acquit the prisoner on the ground of insanity, that he did not 
 know, when he committed the act, what the effect of it, if fatal, 
 would be, with reference to the crime of murder. The question was, 
 did he know that he was committing an offence against the laws of 
 
 (x) The report in Collison, 673, does not not refer to Bellingham's case, as there are 
 
 state the day on which the prisoner shot at some doubts as to the mode in which that 
 
 W. Burrowes. case was conducted.' Per Sir J. Campbell, 
 
 (y) Bowler's case, Collis. 673, in the note. Att.-Gen. in R. v. Oxford, 9 C. & P. 533. 
 
 (z) Bellingham's case, Old Bailey, 15th 
 May, 1812, Collis. Addend. 636. ' I will
 
 CHAP, ii.] Commuting Crimes. — Lunacy , Etc. 123 
 
 God iind nature?' and his lordship expressed his complete accordance 
 in the observations of Lord Mansfield, 0. J., in the last case, (a) 
 
 On the trial of Oxford, for shooting at the Queen, Lord Denman, 
 C. J., told the jury, 'Persons prima facie must be taken to be of 
 sound mind till the contrary is shown. But a person may commit 
 a criminal act, and not be responsible. If some controlling <li 
 was, in truth, the acting power within him which he could not resist, 
 then he will not be responsible. It is not more important than diffi- 
 cult to lay down the rule by which you are to be governed.' ' On 
 the part of the defence, it is contended that the prisoner was n<>n 
 compos mentis, that is (as it has been said) unable to distinguish 
 right from wrong, or, in other words, that from the effect of a 
 diseased mind he did not know at the time that the act he did 
 was wrong.' Something has been said about the power to con- 
 tract and to make a will ; but I think that those things do not 
 supply any test. The question is, whether the prisoner was labour- 
 ing under that species of insanity which satisfies you that he was 
 quite unaware of the nature, character, and consequences of the act 
 he was committing, or, in other words, whether he was under the 
 influence of a diseased mind, and was really unconscious at the time 
 he was committing the act that it was a crime ? ' (b) 
 
 J. Hadfielcl was tried in the Court of King's Bench, in 1800, for high 
 treason, in shooting at the King, in Drury Lane Theatre ; and the 
 defence was insanity. He had been a private soldier in a dragoon 
 regiment, and in 1793 received many severe wounds in battle, which 
 had caused partial derangement of mind, and he had been dismissed 
 from the army on account of insanity. Since his return to this coun- 
 try he had been annually out of his mind from the beginning of spring 
 to the end of the dog-days, and had been under confinement as a lunatic. 
 When affected by his disorder, he imagined himself to hold intercourse 
 with God ; sometimes called himself God, or Jesus Christ, and used 
 other expressions of the most blasphemous kind ; and also committed 
 acts of the greatest extravagance ; but at other times he appeared to be 
 rational, and discovered no symptom of mental incapacity or disorder. 
 On the 11th of May preceding his commission of the act in question 
 his mind was very much disordered, and he used many blasphemous 
 expressions. At one or two o'clock on the following morning, he 
 suddenly jumped out of bed, and alluding to his child, a boy of 
 eight months old, of whom he was usually remarkably fond, said he 
 was about to dash his brains out against the bedpost, and that God 
 had ordered him to do so ; and upon his wife screaming, and his 
 friends coming in, he ran into a cupboard and declared he would 
 lie there, it should be his bed, and God had said so ; and when doing 
 this, having overset some water, he said he had lost a great deal 
 of blood. On the same and the following day he used many inco- 
 herent and blasphemous expressions. On the morning of the 15th 
 of May he seemed worse, said that he had seen God in the night, 
 that the coach was waiting, and that he had been to dine with the 
 King. He spoke very highly of the King, the royal family, and 
 
 (a) R. v. Offord, 5 C. & P. 168. Lord Denman, C. J., Aldersoii, B., and Patte- 
 Lyndhuvst, C. B. son, J. 
 
 (b) R. v. Oxford, 9 C. & P. 525. Lord
 
 124 Of Persons capable of [book i. 
 
 particularly of the Duke of York. He then went to his master's 
 workshop, whence he returned to dinner at two, but said that he 
 stood in no need of meat, and could live without it. He asked for 
 tea between three and four o'clock, and talked of being made a 
 member of the society of Odd Fellows ; and, after repeating his irre- 
 ligious expressions, went out and repaired to the theatre. On the 
 part of the Crown, it was proved that he had sat in his place in the 
 theatre nearly three quarters of an hour before the King entered ; that 
 at the moment when the audience rose, on His Majesty's entering his 
 box, he got up above the rest, and presenting a pistol loaded with slugs, 
 fired it at the King's person, and then let it drop ; and when he fired 
 his situation appeared favourable for taking aim, for he was standing 
 upon the second seat from the orchestra in the pit ; and he took a 
 deliberate aim, by looking down the barrel, as a man usually does 
 when taking aim. On his apprehension, amongst other expressions, 
 he said that ' he knew perfectly well his life was forfeited ; that he 
 was tired of life, and regretted nothing but the fate of a woman 
 who was his wife, and would be his wife a few days longer, he sup- 
 posed.' These words he spoke calmly, and without any apparent 
 derangement ; and with equal calmness repeated that he was tired 
 of life, and said that ' his plan was to get rid of it by other means ; 
 he did not intend anything against the life of the King ; he knew 
 the attempt only would answer his purpose.' The counsel for the 
 prisoner (c) in his very able address to the jury, put the case as 
 one of a species of insanity in the nature of a morbid delusion of 
 the intellect, and admitted that it was necessary for them to be 
 satisfied that the act in question was the immediate unqualified 
 offspring of the disease. And Lord Kenyon held that as the prisoner 
 was deranged immediately before the offence was committed, it was 
 improbable that he had recovered his senses in the interim ; and 
 although, were they to run into nicety, proof might be demanded of 
 his insanity at the precise moment when the act was committed ; 
 yet, there being no reason for believing him to have been at that 
 period a rational and accountable being, he ought to be acquitted, (d) 
 On an indictment for the murder of Mr. Drummond the defence 
 was insanity, and the medical evidence w T as that persons of other- 
 wise sound mind might be affected with morbid delusions ; that 
 the prisoner was in that condition ; that a person labouring under 
 a morbid delusion might have a moral perception of right and wrong ; 
 but that, in the case of the prisoner, it was a delusion which car- 
 ried him away beyond the power of his own control, and left him 
 no such perception ; and that he was not capable of exercising any 
 control over acts which had a connection with his delusion ; that 
 it was the nature of his disease to go on gradually until it had 
 reached a climax, when it burst forth with irresistible intensity ; 
 that a man might go on for years quietly, though at the same time 
 under its influence, but would at once break out into the most 
 violent paroxysms. Tindal, C. J., told the jury, 'The question to be 
 determined is, whether, at the time the act in question was com- 
 
 (c) Lord Erskine, then at the bar. verdict was Not Guilt}', on the ground of 
 
 (d) Hadfield's case, Collis. 480. The insanity.
 
 chap, ii.] Committing Crimes. — Lunacy, Etc. 125 
 
 mitted, the prisoner had or had not the use of his understanding 
 so as to know that he was doing a wrong or wicked act. If the 
 jury should be of opinion that the prisoner was not sensible at the 
 time he committed the act that he was violating both the laws of 
 God and man, (e) then he would be entitled to a verdict in his favour ; 
 but if, on the contrary, they were of opinion that, when he com- 
 mitted the act, he was in a sound state of mind, (/) then their verdict 
 must be against him.' (g) 
 
 The acquittal, in the preceding case, on the ground of insanity, 
 gave rise to a discussion in the House of Lords, and the following 
 questions were put to the judges, and answered by them all, except 
 Maule, J., as follows, in June, 1843 : — 
 
 Q. I. ' What is the law respecting alleged crimes committed by 
 persons afflicted with insane delusion in respect of one or more par- 
 ticular subjects or persons ; as, for instance, where, at the time of the 
 commission of the alleged crime, the accused knew he was acting 
 contrary to law, but did the act complained of with a view, under the 
 influence of insane delusion, of redressing or revenging some supposed 
 grievance or inj ury, or of producing some supposed public benefit ? ' 
 
 A. I. ' Assuming that your lordships' inquiries are confined to 
 those persons who labour under such partial delusions only, and are not 
 in other respects insane, we are of opinion that notwithstanding the 
 accused did the act complained of with a view, under the influence 
 of insane delusion, of redressing or revenging some supposed grievance 
 or injury, or of producing some public benefit, he is nevertheless 
 punishable, according to the nature of the crime committed, if he 
 knew at the time of committing such crime that he was acting con- 
 trary to law, by which expression we understand your lordships to 
 mean the law of the land.' 
 
 Q. II. 'What are the proper questions to be submitted to the jury 
 where a person alleged to be afflicted with insane delusion respecting 
 one or more particular subjects or persons, is charged with the com- 
 mission of a crime (murder, for example), and insanity is set up as a 
 defence ? ' 
 
 Q. III. ' In what terms ought the question to be left to the 
 jury as to the prisoner's state of mind, at the time when the act was 
 committed ? ' 
 
 A. II. and III. ' As these two questions appear to us to be more 
 conveniently answered together, we submit our opinion to be that the 
 jury ought to be told in all cases that every man is to be presumed to 
 be sane, and to possess a sufficient degree of reason to be responsible for 
 his crimes, until the contrary be proved to their satisfaction ; and that 
 to establish a defence on the ground of insanity it must be clearly 
 proved that, at the time of committing the act, the accused was labour- 
 ing under such a defect of reason, from disease of the mind, as not to 
 know the nature and quality of the act he vjas doing, or, if he did 
 know it, that he did not knoio he was doing what was wrong. The 
 
 (c) Qucere, whether this position was not (/) Qucere, this position also, as a man 
 
 too favourable for the prk oner, as it required may not have a perfectly sound mind, and yet 
 
 the jury to be satisfied that the prisoner was be criminally responsible ? 
 aware both of the laws of God and man ? (g) R. v/M'Naghten, 10 CI. & F. 200.
 
 126 Of Persons capable of [book i. 
 
 mode of putting the latter part of the question to the jury on these 
 occasions has generally been, whether the accused at the time of 
 doing the act knew the difference between right and wrong ; which 
 mode, though rarely, if ever, leading to any mistake with the jury, 
 is not, as we conceive, so accurate when put generally and in the 
 abstract, as when put with reference to the party 's knowledge of right 
 and wrong, in respect to the very act with which he is charged. If the 
 question were to be put as to the knowledge of the accused solely 
 and exclusively with reference to the law of the land, it might tend 
 to confound the jury, by inducing them to believe that an actual 
 knowledge of the law of the land was essential in order to lead to a 
 conviction : whereas, the law is administered upon the principle that 
 every one must be taken conclusively to know it, without proof that 
 he does know it. If the accused was conscious that the act was one 
 that he ought not to do, and if that act was at the same time contrary 
 to the law of the land, he is punishable ; and the usual course, there- 
 fore, has been to leave the question to the jury, whether the accused 
 had a sufficient degree of reason to know that he was doing an act 
 that was wrong ; and this course we think is correct, accompanied 
 with such observations and explanations as the circumstances of each 
 particular case may require.' 
 
 Q. IV. ' If a person under an insane delusion as to existing facts 
 commits an offence in consequence thereof, is he thereby excused ? ' 
 
 A. IV. 'The answer must, of course, depend on the nature of the 
 delusion ; but making the same assumption as we did before, namely, 
 that he labours under such partial delusion only, and is not in other 
 respects insane, w r e think he must be considered in the same situation 
 as to responsibility as if the facts with respect to which the delusion 
 exists were real. For example, if, under the influence of his delusion, 
 he supposes another man to be in the act of attempting to take away 
 his life, and he kills that man, as he supposes, in self-defence, he 
 would be exempt from punishment. If his delusion was that the 
 deceased had inflicted a serious injury to his character and for- 
 tune, and he killed him in revenge for such supposed injury, he would 
 be liable to punishment.' 
 
 Q. V. ' Can a medical man, conversant with the disease of insanity, 
 who never saw the prisoner previously to the trial, but who was 
 present during the whole trial, and the examination of the witnesses, 
 be asked his opinion as to the state of the prisoner's mmd at the time 
 of the commission of the alleged crime, or his opinion whether the 
 prisoner was conscious at the time of doing the act that he was acting 
 contrary to law, or whether he was labouring under any, and what, 
 delusion at the time ? ' 
 
 A. V. 'We think the medical man, under the circumstances sup- 
 posed, cannot, in strictness, be asked his opinion in the terms above 
 stated, because each of those questions involves the determination of 
 the truth of the facts deposed to, which it is for the jury to decide, and 
 the questions are not questions upon n mere matter of science, in which 
 case such evidence is admissible. But where the facts are admitted, 
 or not disputed, and the question becomes substantially one of science 
 only, it may be convenient to allow the question to be put in that
 
 chap. ii. J Committing Crimes. — Lunacy, Etc. 
 
 127 
 
 general form, though the same cannot be insisted on as a matter oi 
 right.' (h) 
 
 The prisoner, who was charged with stealing a cow, had had his cow 
 taken from him under an illegal distress, and, with a view of recover- 
 ing her, he had gone in the night to the close of the prosecutor, who 
 had purchased her, and taken another cow out of it. Owing to the loss 
 of his cow, and various other losses, the prisoner's mind was affected, 
 and he was under the impression that every one was robbing him. 
 Tindal, C. J., told the jury that it is not mere eccentricity or singu- 
 larity of manner that will suffice to establish the plea of insanity ; it 
 must be shown that the prisoner ' had no competent use of his under- 
 standing, so as to know that he was doing a wrong thing in the 
 particular act in question.' (i) 
 
 Upon an indictment for murder, by burying a child alive, upon the 
 surgeon, who was called for the prosecution, being asked whether a frac- 
 ture of the skull was the cause of the death, or whether the child had, 
 
 (h) 1 C. & K. 130, 10 C. & F. 200. 
 Maule, J., after expressing the difficulty he 
 felt m answering the questions, because they 
 did not arise out of, and were not put with 
 reference to, a particular case, or for a par- 
 ticular purpose, which might limit or ex- 
 plain the generality of their terms, said, in 
 answer to the first question, ' so far as it 
 comprehends the question whether a person 
 circumstanced as stated in the question is for 
 that reason only to be found not guilty of a 
 crime respecting which the question of his 
 guilt has been duly raised in a criminal pro- 
 ceeding, and I am of opinion that he is not. 
 There is no law that I am aware of that 
 makes persons in the state described in the 
 question not responsible for their criminal 
 acts. To render a person irresponsible for 
 crime on account of unsoundness of mind the 
 unsoundness should, according to the law as 
 it has been long understood and held, be 
 such as to render him incapable of knowing 
 right from wrong. The terms used in the 
 question cannot be said (with reference only 
 to the usage of language) to be equivalent 
 to a description of this kind and degree of 
 unsoundness of mind. ' To the second ques- 
 tion the learned judge answered, ' If, on a 
 trial such as is suggested in the question, the 
 judge should have occasion to state what 
 kind and degree of insanity would amount 
 to a defence, it should be stated conformably 
 to what I have mentioned in my answer to 
 the first (piestion as being, in my opinion, 
 the law on this subject.' To the third ques- 
 tion the learned judge replied, ' There are 
 no terms which the judge is by law required 
 to use. They should not be inconsistent with 
 the law as above stated, but should be such 
 as, in the discretion of the judge, are proper 
 to assist the jury in corning to a right con- 
 clusion as to the guilt of the accused.' To 
 the fourth question the learned judge replied 
 that the answer to the first question was 
 applicable to this. To the fifth question 
 the learned judge replied, 'whether a ques- 
 tion can be asked depends, not merely on 
 
 the questions of fact raised on the record, 
 but on the course of the cause at the time 
 when it is proposed to ask it ; and the state 
 of an inquiry as to the guilt of a person 
 charged with a crime, and defended on the 
 ground of insanity, may be such that such a 
 question as either of those suggested is proper 
 to be asked and answered, though the wit- 
 ness has never seen the person before the 
 trial, and though he has been present and 
 heard the witnesses ; these circumstances of 
 his never having seen the person before, and 
 of his having been present at the trial, not 
 being necessarily sufficient, as it seems to me, 
 to exclude the lawfulness of a question, which 
 is otherwise lawful, though I will not say 
 that an enquiry might not be in such a state 
 as that these circumstances should have such 
 an effect. Supposing there is nothing else in 
 the state of the trial to make the questions 
 suggested proper to be asked and answered, 
 except that the witness had been present and 
 heard the evidence, it is to be considered 
 whether that is enough to sustain the ques- 
 tion ; in principle it is open to the objection 
 that as the opinion of the witness is founded 
 on those conclusions of fact, which he forms 
 from the evidence, and as it does not appear 
 what these conclusions are, it may be that 
 the evidence he gives is on such an assump- 
 tion of facts as makes it irrelevant to the 
 enquiry. But such questions have been very 
 frequently asked, and the evidence to which 
 they are directed given, and has never, that 
 I am aware of, been successfully objected to; 
 and I think the course and practice of re- 
 ceiving such evidence, confirmed by the very 
 high authority of Tindal. C. J., Williams, J., 
 and Coleridge, J., in R. v. M'Naghten, who 
 not only received it, but left it, as I under- 
 stand, to the jury without any remark dero- 
 gating from its weight, ought to be held to 
 warrant its reception, notwithstanding the 
 objection in principle to which it may be 
 open.' 
 
 (i) R. v. Vaughan, 1 Cox, C. C. 80. 
 Summer, 1844.
 
 128 Of Persons capable of [book i. 
 
 after the fra-cture of the skull, been suffocated by being buried while 
 alive, the prisoner said, in open court, ' I put him in alive.' Two 
 witnesses stated that the prisoner was of ' very weak intellect,' and 
 the surgeon of the prison stated that the prisoner was of ' very weak 
 intellect but capable of knowing right from wrong.' Maule, J., after ad- 
 verting to the evidence adduced, said to the jury, 'If you are satisfied 
 that the prisoner committed this offence, but you are also satisfied that, 
 at the time of the committing the offence, the prisoner was so insane 
 that he did not know right from wrong, he should be acquitted on that 
 ground ; but if you think that, at the time of committing the offence, 
 he did know right from wrong, he is responsible for his acts, although 
 he is of weak intellect.' (J) 
 
 Upon an indictment for murder it appeared that the prisoner, in the 
 soldiers' room in the barracks, took up his musket as if to clean it, 
 levelled it at the deceased, fired and killed her on the spot ; her hus- 
 band and child being in the room, and two other soldiers being present. 
 The prisoner was a man of singular habits, and seldom spoke to the 
 other soldiers, was very ' secluded, sulky, and sullen,' and was described 
 as ' a close-minded man,' and ' a man of a very nasty temper.' He had 
 frequently complained of illness, and had made efforts to get into the 
 hospital, but he was rejected, as having no visible disorder. (The re- 
 port contains a statement of sundry other facts as to the prisoner's state 
 of mind.) The defence was that the prisoner was insane, or that he was 
 under such an insane impulse as to render him irresponsible. Rolfe, B., 
 in summing up said : ' If a prisoner seeks to excuse himself upon the 
 plea of insanity, it is for him to make it clear that he was insane at 
 the time of committing the offence charged. The onus rests on him ; 
 and the jury must be satisfied that he actually was insane. If the 
 matter be left in doubt, it will be their duty to convict him ; for every 
 man must be presumed to be responsible for his acts till the contrary 
 is clearly shown. A case occurred some time ago at the Central Crim- 
 inal Court, before Alderson, B., and the jury hesitated as to their 
 verdict, on the ground that they were not satisfied whether the pris- 
 oner was or was not of sound mind when he committed the crime ; 
 and that learned judge told them, that, unless they were satisfied of 
 his insanity, it would be their duty to find a verdict of guilty. Every 
 man is held responsible for his acts by the law of this country, if he 
 can discern right from wrong. This subject was a few years ago 
 carefully considered by all the judges, and the law is clear upon the 
 subject. It is true, that learned speculators, in their writings, have 
 laid it down that men, with a consciousness that they were doing 
 wrong, were irresistibly compelled to commit some unlawful act. But 
 who enabled them to dive into the human heart, and see the real 
 motive that prompted the commission of such deeds ? It has been 
 urged that no motive has been shown for the commission of this 
 crime. It is true that there is no motive apparently but a very inad- 
 equate one ; but it is dangerous ground to take, to say that a man 
 must be insane because men fail to discern the motive for his act. 
 It has also been said that the conduct of the prisoner was that of a 
 
 (j) R, v. Higghson, 1 C & K. 129. The 1843. R. v. Davies, 1 F. & F. 69. R. v. 
 prisoner was convicted and executed, August, Richards, Ibid. 87, S. P.
 
 ciiap. ii.] Committing Crimes. — Lunacy, Etc. 129 
 
 mailman in committing the offence at such a time, in the presence of 
 the woman's husband, who had arms within his reach ; but it would 
 be a most dangerous doctrine to lay down, that because a man com- 
 mitted a desperate offence, with the chance of instant death, and the 
 certainty of future punishment before him, he was therefore insane, as 
 if the perpetration of crimes was to be excused by their very atrocity.' (k) 
 On the trial of a prisoner for the murder of his wife, it appeared 
 that he had always treated her and their children with kindness ; 
 that they were talking with a neighbour at their door late at night, 
 and at four o'clock next morning it was discovered that he had cut 
 the throats of his wife and child, and had attempted to commit 
 suicide. When questioned, he exhibited no sorrow or remorse for 
 his conduct, but stated that ' trouble and dread of poverty and des- 
 titution had made him do it, fearing that his wife and child would 
 starve when he was dead.' He said he had contemplated suicide for 
 a week past ; he had not had any quarrel with his wife, and that, 
 having got out of bed to destroy himself, the thought had first come 
 into his head to kill his wife and child ; he had first attacked her 
 whilst she was asleep in bed ; she got away from him, and rushed to 
 the window ; he then killed the child, and seizing his wife, pulled her 
 backwards to him, and cut her throat ; he next tried to cut his own 
 throat, but his powers failed him, and he did not succeed, though he 
 wounded himself severely. This narrative, coupled with a knowledge 
 of the prisoner's private circumstances, induced the surgeon to form 
 the opinion that the prisoner, at the time he committed the act, had 
 not, in consequence of an uncontrollable impulse, to which all human 
 beings are subject, any control over his conduct. The desire to inflict 
 pain and injury on those previously dear to the prisoner, was in itself 
 a strong symptom of insanity, and the impossibility of resisting a 
 sudden impulse to slay a fellow-being, was another indication that 
 the mind was insane. There was not necessarily a connection be- 
 tween homicidal and suicidal monomania, though it would be more 
 likely that a monomaniac who had contemplated suicide should kill 
 another person, than for one who had not entertained any such feel- 
 ings of hostility to his own existence. Monomania was an affection, 
 which, for the instant, completely deprived the patient of all self- 
 control in respect of some one particular subject which is the object of 
 the disease. The prisoner had no delusion, and his reasoning faculties 
 did not seem to be affected ; but he had a decided monomania evincing 
 itself in the notion that he was coming to destitution. For that, there 
 was some foundation in fact ; but it was the surgeon's decided opinion 
 that the prisoner was in an unsound state of mind at the moment he 
 cut his wife's throat. On the day before, the prisoner had had his 
 razor sharpened, saying he wanted it to give to some friend ; and the 
 prisoner had suffered a severe pecuniary loss not long before, and it 
 had produced a decided effect upon his mind, giving rise to the most 
 gloomy anticipations on account of his wife and family. Parke, B., 
 told the jury that the only question was whether, at the time the 
 prisoner inflicted the wound on his wife, ' he was in a state of mind to 
 be made responsible to the law for her murder. That would depend 
 
 (k) R. v. Stokes, 3 C. & K. 185. Spring, 1848. 
 vol. i. — 9.
 
 130 Of Persons capable of [book i. 
 
 upon the question, whether he, at the time, knew the nature and 
 character of the deed he was committing, and, if so, whether he knew 
 he was doing wrong in so acting. This mode of dealing with the 
 defence of insanity had not, he was aware, the concurrence of medical 
 men ; but he must, nevertheless, express his decided concurrence with 
 Eolfe, B.'s views of such cases, that learned judge having expressed his 
 opinion that the excuse of an irresistible impulse co-existing with the 
 full possession of reasoning powers might be urged in justification of 
 every crime known to the law — for every man might be said, and 
 truly, not to commit any crime except under the influence of some 
 irresistible impulse. Something more than this was necessary to 
 justify an acquittal on the ground of insanity, and it would therefore 
 be for the jury to say whether, taking into consideration all that the 
 surgeon had said, which was entitled to great weight, the impulse, 
 under which the prisoner had committed this deed, was one which 
 altogether deprived him of the knowledge that he was doing wrong. 
 Could he distinguish between right and wrong ? Keliance was placed 
 on the desire to commit suicide, but that did not always evidence 
 insanity. And here the prisoner was led to attempt his own life by 
 the pressure of a real substantial fact clearly apparent to his percep- 
 tive organs, and not by any unsubstantial delusion. The fact, how- 
 ever, must be taken into the account, for it might have had a serious 
 effect on the mind of the prisoner, as also the absence of any attempt 
 to escape from justice, and the want of all sense of sorrow and regret 
 immediately after the death of his wife, contrasted with his more 
 natural state of mind afterwards, when he felt and expressed regret 
 and sorrow for his act. These circumstances ought all to be taken 
 into consideration ; but it was difficult to see how they could establish 
 the plea of insanity in a case where there was a total absence of all 
 delusion.' (/) 
 
 The prisoner, a youth of eighteen, at first pleaded guilty to an 
 indictment for murder ; the judge warned him that this would not 
 affect his fate ; his counsel said he was insane, and desired to be 
 hung ; the prisoner, however, with apparently perfect intelligence, 
 retracted his plea, and pleaded not guilty. The deceased, a boy, 
 had been found with his throat cut, and the prisoner gave him- 
 self up, and admitted the act, recounting all the circumstances 
 with perfect intelligence ; and it did not appear that there was 
 any ill-will to the boy, and the prisoner had said, ' I had no par- 
 ticular ill-feeling against the boy, only I had made up my mind 
 to murder some one.' He added that he had wiped his hands and 
 the knife. Afterwards he said that it was well for a Mr. Clark 
 that he had left Chatham, for he had prosecuted him, and he had 
 made up his mind to murder him when he came out of gaol. Evi- 
 dence was given on behalf of the prisoner of strange conduct, and a 
 
 (l) R. v. Barton, 3 Cox, C. C. 275. Verdict guilty. Summer, 1848. 1 
 
 American Note. 
 
 1 Tt is maintained by Mr. Bishop, see established ought to constitute a complete 
 vol. i. s. 387, that tlie question of irresistible defence. See vol. i. s. 383 (b); and as to 
 impulse is one of fact for the jury, and if moral insanity, see ss. 387-388.
 
 €HAP. il] Commit Uh <j Crimes. — Lunacy, Etc. 131 
 
 surgeon proved that on two occasions he had sent the prisoner's 
 mother to a lunatic asylum: she was low and desponding, and 
 attempted suicide. The prisoner's brother was of weak intellect. 
 On two occasions he had attended the prisoner, and said he believed 
 he was labouring under what, in the profession, would be considered 
 as moral insanity ; that is, he knows perfectly well what he is doing, 
 but has no control over himself. By the moral feelings he meant the 
 propensities which may be diseased, while the intellectual faculties 
 are sound ; and that, having heard the evidence, in his opinion, it was 
 reasonable to believe that there must in the prisoner's case be some 
 derangement of the brain, — some deviation from the normal con- 
 dition of the brain. On cross-examination, he stated that he believed 
 the prisoner knew what he was doing, but that an impulse came upon 
 him, which he could not control ; and he adopted an opinion of Dr. 
 Winslow's, that no man could commit suicide in a state of sanity. 
 He believed the prisoner had no proper control over his actions. He 
 had a knowledge of right and wrong, but could not control his 
 actions. Evidence on the part of the Crown was given to show that 
 the prisoner was sane. Wightman, J., said that ' in M'Naghten's case 
 the judges laid down the rule to be that there must, to raise the 
 ■defence, be a defect of reason from disease of the mind, so as that the 
 person did not know the nature and quality of the act he committed, 
 •or did not know whether it was right or wrong. It was not mere 
 eccentricity of conduct which made a man irresponsible for his acts. 
 The medical man called for the defence had defined homicidal mania 
 to be a propensity to kill, and described moral insanity as a state of 
 mind under which a man, perfectly aware that it was wrong to do so, 
 killed another under an uncontrollable impulse. This seemed to be 
 a most dangerous doctrine, and fatal to the interests of society and 
 security of life. The question was whether such a theory was in 
 accordance with law. The rule, as laid down by the judges, was 
 quite inconsistent with such a view ; for it was, that a man was 
 responsible for his actions if he knew the difference between right 
 and wrong. It was urged that the prisoner did the act in order to be 
 hanged, and so was under an insane delusion ; but what delusion was 
 he under ? So far from it, it showed that he was quite conscious of 
 the nature of the act and its consequences. He was supposed to 
 desire to be hanged, and in order to attain the object committed 
 murder. That might show a morbid state of mind, but not delusion. 
 Homicidal mania, again, as described by the witnesses for the defence, 
 showed no delusion ; it merely showed a morbid desire for blood. 
 Delusion meant the belief in what did not exist. The question for 
 the jury was, whether the prisoner at the time he committed the act 
 was labouring under such a species of insanity as to be unaware of 
 the nature, the character, or the consequences of the act he com- 
 mitted. In other words, whether he was incapable of knowing that 
 what he did was wrong.' (m) 
 
 On an indictment for murder, it appeared that the prisoner had 
 been engaged to the deceased, but her friends disapproved, and the 
 engagement was broken off, but renewed afterwards. However, the 
 
 (m) R. v. Burton, 3 F. & F. 772.
 
 132 Of Persons capable of [book i. 
 
 deceased formed an attachment for another, and wrote to the prisoner 
 to break off the engagement; and he wrote three very sensible letters 
 in reply to hers, that he would not stand in her way if she was resolved 
 to part with him, but that he should prefer to have an interview with 
 her, and to hear her determination from her own lips. Accordingly 
 he went to the place where she lived, and they were seen together, 
 and she was afterwards found with her throat cut in three places. 
 The prisoner came up and assisted to carry her to the house, repeatedly 
 stating that he had done it, and should be hanged for it. He said 
 also, ' Poor Bessie ! you should not have proved false to me.' He 
 told her grandfather, who asked what was amiss, ' It is your grand- 
 daughter, Betsy, murdered. She has deceived me, and the woman 
 that deceives me must die.' The prisoner behaved throughout with 
 apparent indifference, and, on the arrival of the police, said that he 
 wished to give himself up for murdering the young lady ; and added, 
 ' I am far happier now I have done it than I was before, and I trust 
 she is.' Evidence was given that there had been insanity in the 
 family, and Dr. Winslow stated that he had seen the prisoner. ' I 
 talked to him largely on the subject of the crime, and I am of opinion 
 that at the present moment he is a man of deranged intellect. He 
 told me he did not recognise he had committed any crime at all, 
 neither did he feel any degree of pain, regret, contrition, or remorse 
 for what [he had done. I endeavoured to impress on his mind the 
 serious nature of the crime he had committed. He repudiated the 
 idea of its being a crime either against God or man, and attempted 
 to justify the act, alleging that he considered Miss Goodwin as his 
 own property ; that she had been illegally wrested from him by an 
 act of violence ; that he viewed her in the light of his wife, who had 
 committed ah act of adultery ; and that he had as perfect a right to 
 deal with her life as he had with any other description of property, — 
 as the money in his pocket, &c. I endeavoured to prove to him the 
 gross absurdity of his statement and the enormity of his offence : he 
 replied, " Nothing short of a miracle can alter my opinions." The 
 expression that Miss Goodwin was his property was frequently re- 
 peated. He killed her, he said, to recover property which had been 
 stolen from him. I could not disturb this, as I thought, very insane 
 idea. I said, " Suppose any one robbed you of a picture, what course 
 would you take to recover it ? " He said he would demand its restitu- 
 tion, and if it were not granted, he would take the person's life 
 without compunction. I remarked that he had no right to take 
 the law into his own hands ; he should have recourse to legal mea- 
 sures to obtain restitution. He replied that he recognised the right 
 of no man to sit in judgment upon him ; he was a free agent ; and as 
 he did not bring himself into the world by any action of his own, he 
 had perfect liberty to think and act as he pleased, irrespective of 
 anyone else. I regard these expressions as evidence of a diseased 
 intellect. He said he had been for some weeks under the influence 
 of a conspiracy ; there were six conspirators plotting against him, 
 with a view to destroy him, with a chief conspirator at their head. 
 This conspiracy was .still going on while he was in prison, and he 
 had no doubt that, if he were at liberty, they would continue their
 
 chap. II.] Committing Crimes. — Lunacy, Etc. 133 
 
 operations against him, and in order to escape their evil purposes he 
 would have to leave the country. He became much excited, and 
 assumed a wild demoniacal aspect. I am satisfied that aspect was 
 not simulated.' On cross-examination he said, 'I have no doubt he 
 knows that these opinions of Ins are contrary to those generally 
 entertained, and that, if acted upon, they would subject him to punish- 
 ment. I should think that he would know that killing- a person 
 was contrary to law, and wrong in that sense. I- should think, from 
 his saying he should be hanged, that he knew he had done wrong. 
 His moral sense was more vitiated than I ever found that of any 
 other human being. His opinions were pretty much those of atheists, 
 but he was beyond atheism. He seemed incapable of reasoning 
 correctly on any moral subject. He denied the existence of a God 
 and of a future world. He said it was a matter of perfect indifference 
 whether he was dead or alive.' Martin, B., told the jury that what 
 the law meant by an insane man was, a man who acted under delu- 
 sions, and supposed a state of things to exist which did not exist, and 
 acted thereupon. A man who did so was under a delusion, and a 
 person so labouring was insane. In one species of insanity the 
 patient lost his mind altogether, and had nothing but instinct left. 
 Such a person would destroy his fellow-creatures, as a tiger did his 
 prey, by instinct only. A man in that state had no mind at all, 
 and therefore was not criminally responsible. The law, however, 
 went farther than that. If a man labouring under a delusion did 
 something of which he did not know the real character — something 
 of the effect and consequences of which he was ignorant — he was 
 not responsible. An ordinary instance of such delusion was wdrere 
 a man fancied himself a king, and treated all around him as his 
 subjects. If such a man w r ere to kill another under the supposition 
 that he was exercising his prerogative as a king, and that he was 
 called upon to execute the other as a criminal, he would not be 
 responsible. The result was, that if the jury believed that at the 
 time the act was committed the prisoner was labouring under a 
 delusion, and believed that he was doing an act that was not wrong, 
 or of which he did not know the consequences, he would be excused. 
 If, on the other hand, he well knew that his act would take away 
 life — that that act was contrary to the law of God, and punishable 
 by the law of the land — he was guilty of murder. In his opinion 
 the law was best laid down by Le Blanc, J., in Bowler's case {supra'] 
 who told the jury that it w T as for them to determine whether the 
 prisoner, when he committed the offence, was incapable of distinguish- 
 ing right from wrong, or under the influence of any illusion which 
 rendered his mind at the moment insensible of the nature of the act 
 he was about to commit ; since in that case he would not be legally 
 responsible for his conduct. On the other hand, provided they should 
 be of opinion that when he committed the act he was capable of 
 distinguishing right from wrong, and not under the influence of such 
 an illusion as disabled him from discerning that he was doing a wrong 
 act, he would be amenable to justice. After noticing other cases, 
 Martin, B., told the jury that they must judge of the act by the 
 prisoner's statements and by what he did at the time. Unless they 
 were satisfied — and it was for the prisoner to make it out — that he
 
 134 Of Persons capable of [book i. 
 
 did not know the consequences of his act, or that it was against the 
 law of God and man, and would subject him to punishment, he was 
 guilty of murder. The prisoner's letters appeared to be as sensible 
 letters as ever he had read. Again, the reason the prisoner gave for 
 his act was, ' She should not have proved false to me.' Now, if his 
 real motive was that he conceived himself to have been ill-used, and 
 either from jealousy of the man who was preferred to him, or from 
 a desire of revenge upon her, committed the act, that would be murder. 
 Those were the very passions which the law required men to control ; 
 and if the deed was done under the influence of those passions, there was 
 no doubt it was murder. The prisoner's expression, that he should 
 be hanged for it, indicated that he knew the consequences of his act. 
 Another reason he gave for what he had done was, ' The woman who 
 deceives me must die.' If a young lady promised to marry a man, 
 and then changed her mind, it might be truly said that she deceived 
 him; but what would be the consequences to society if men were 
 to say every woman who treated them in that way should die, and 
 were to carry out those views by cutting their throats ? The prisoner 
 claimed to exercise the same power over a wife as he could lawfully 
 exercise over a chattel ; but that was not a delusion, nor like a delu- 
 sion. It was the conclusion of a man, who had arrived at results 
 different from those generally arrived at, and contrary to the laws of 
 God and man ; but it was not a delusion. It had been said by one 
 of the witnesses that the prisoner did not know the difference be- 
 tween good and evil. If that was a test of insanity, many men were 
 tried who did not know that difference. In truth, it was no test at 
 all. The idea of a conspiracy was a delusion, but the mere setting 
 himself up against the law of God and man was not a delusion at all. 
 The question for the jury was, Was the prisoner insane, and did he do the 
 act under a delusion, believing it to be other than it was ? If he knew 
 what he was doing, and that it was likely to cause death, and was 
 contrary to the law of God and man, and that the law directed that 
 persons who did such acts should be punished, he was guilty of 
 murder, (n) 
 
 On an indictment for murder, the prisoner appeared to have been 
 on the most intimate terms with the ' unfortunate woman ' he had 
 killed. No motive was assigned for the murder. The prisoner hav- 
 ing seduced a young woman under a promise of marriage, which 
 he had been unable to fulfil, his reason had been much affected 
 by it. Bramwell, B., read the opinion of the judges in the House 
 of Lords to the jury, and then said, 'It has been urged that you 
 should acquit the prisoner on the ground that, it being impossible to 
 assign any motive for the perpetration of the offence, he must have 
 been acting under what is called a powerful and irresistible influ- 
 ence, or homicidal tendency. But the circumstance of an act being 
 apparently motiveless, is not a ground from which you can safely 
 infer the existence of such an influence. Motives exist unknown and 
 innumerable, which might prompt the act, A morbid and restless, 
 but resistible, thirst for blood, would itself be a motive urging to such 
 a deed for its own relief. But if an influence be so powerful as to be 
 
 {n) R. i>. Townley, 3 F. & F. 839.
 
 chap, ii.] Committing Crimes. — Lunacy, Etc. 135 
 
 termed irresistible, so much the more reason is there why we should 
 not withdraw any of the safeguards tending to counteract it. There 
 are three powerful restraints existing, all tending to the assistance of 
 the person who is suffering under such an influence, — the restraint of 
 religion, the restraint of conscience, and the restraint of law. But if 
 the influence itself be held a legal excuse, rendering the crime dis- 
 punishable, you at once withdraw a most powerful restraint — that 
 forbidding and punishing its perpetration. We must return, there- 
 fore, to the simple question you have to determine — did the prisoner 
 know the nature of the act he was doing, and did he know that he 
 was doing what was wrong.' (o) 
 
 On a trial for murder, it appeared that the prisoner and his wife 
 were walking along a road, and he had been for some time chiding her, 
 and then he fired a pistol at her and she fell; and he pulled her 
 up, and they proceeded a few yards, when he pushed her down, and 
 inflicted a second wound on her throat with a knife. He then got 
 over a hedge into a field, and ran some distance, until he was over- 
 taken by a person who had seen the woman fall. The prisoner wiped 
 the blood off his hands, saying he had met with a misfortune and cut 
 his finger. He would not tell what he had done with the pistol and 
 knife, but said, ' I did it. I intended to do it, and that will put an end 
 to it. I have been unhappy since Christmas.' At the time he shot 
 and cut his wife, he must have known that persons were within a 
 short distance, having just before met them. The prisoner had threat- 
 ened to murder his wife before, and on the day before he was heard 
 sharpening a knife, and the wife was afterwards seen running out of 
 the house, followed by the prisoner with a knife similar to one found 
 near the place where the murder was committed. The prisoner had 
 been in gaol for debt for two months in the early part of the year, and 
 had been unfortunate in building speculations. Several witnesses 
 were called for the prisoner, who stated that they believed that the 
 prisoner was not in his right mind, and proved sundry statements 
 made by him as to his property and other matters, which were 
 alleged to be delusions, and that his conduct had been strange, and 
 his manner greatly excited. For the prosecution, witnesses were 
 called to prove that he was sane, and had acted in matters of business 
 in a rational manner. Eolfe, B., told the jury that insanity was the 
 most difficult question which could engage the attention of any 1 ri- 
 bunal. It was difficult to define it in words, or even in idea. The 
 opinion of the judges was taken by the House of Lords a few years 
 back, as to what was to constitute a definition of insanity, and it 
 created very great difficulty, but after great and anxious deliberation, 
 they came to the conclusion that the old description was the best, viz., 
 that insanity should constitute a defence only when a party was in 
 such a state of mind arising from disease as to be incapable of deciding 
 between right and wrong ; but that this definition was imperfect, as 
 all definitions must be, and would require to be modified with refer- 
 ence to each particular case. Applying that law to the present case, 
 what the jury had to consider was, whether the evidence was such as 
 to satisfy them that at the time the act was committed by the pris- 
 
 (0) R. v. Haynes, 1 F. & F. 666. R. v. Brough, 2 F. & F. 838, note, S. P.
 
 136 Of Persons capable of [book i. 
 
 oner, he was incapable of understanding right from wrong, as that he 
 could not appreciate the nature of the act he was committing. Per- 
 haps it would be going too far to say that a party was responsible in 
 every case where he had a glimmering knowledge of what w T as right 
 and wrong. In cases of this description, there was one cardinal rule 
 which should never be departed from, viz., the burden of proving inno- 
 cence rested on the accused. Every man committing an outrage on 
 the person or property of another, must be, in the first instance, taken 
 to be a responsible being. Such a presumption was necessary for the 
 security of mankind. A man going about the world, marrying, deal- 
 ing, and acting as if he were sane, must be presumed to be sane till he 
 proves the contrary. The question, therefore, would be, not whether 
 the prisoner was of sound mind, but whether he had made out to their 
 satisfaction that he was not of sound mind. They might arrive at 
 the conclusion, from the nature of his conduct and acts up to the time 
 of the act in question, or shortly preceding it, that he was insane ; 
 chough he was not capable of proving it by positive testimony, as 
 such was the nature of the mind, that it might be one minute sane, 
 and the next insane, and therefore it might be impossible for a party 
 to give positive evidence of its condition at the particular moment in 
 question. The conclusion seemed irresistible, that the prisoner was 
 to some extent labouring under a delusion, but he was not exempt 
 from responsibility because he w r as labouring under a delusion as to his 
 property, unless that had the effect of making him incapable of under- 
 standing the wickedness of murdering his wife. But when that was 
 the question they had to consider, he could not say that it was altogether 
 immaterial that he was insane on one point only, {p) Indeed his 
 insanity on that point might guide them to a conclusion as to his 
 sanity on the point involved in this case, and, in this view of the 
 matter, there were two circumstances in the evidence of great impor- 
 tance : these were, the want of motive for the commission of the 
 crime, and its being committed under circumstances which rendered 
 detection inevitable. They could come to no other conclusion than 
 that the prisoner had taken away the life of his wife, and that this 
 was murder, unless he had satisfied them that he was not capable at 
 the time of appreciating his acts, (q) 
 
 On a trial for murder the prisoner was acquitted, but a question was 
 reserVed as to whether the evidence of a medical man was properly ad- 
 mitted. He volunteered his evidence, and wished to give his opinion 
 upon the evidence as to the state of the prisoner's mind at the time the 
 act was done ; and he was allowed so to do. The judges did not come 
 
 (/)) Qucere, omit 'only,' which seems in- he did the act, he was legally responsible ; 
 
 consistent with the context. in other words, whether he knew its nature, 
 
 (q) R. v. Layton, 4 Cox, C. C. 149, and knew that it was wrong. The distance, 
 
 Summer, 1849. R. v. Law, 2 F. &. F. 836, indeed, between the extreme points of mani- 
 
 S. P. Sec R. v. Leigh, 4 F. & F. 915, where fest mania and perfect sense was great, but 
 
 on the trial of an indictment for murder, in- they approach by gradual steps and slow 
 
 sanity was set up as a defence, and Erie, degree. The law, however, did not say that 
 
 C. J., said, 'The question was, whether the when any degree of insanity existed, the 
 
 prisoner was or was not responsible when he party was not responsible, but that when lie 
 
 committed the act, not whether he was not was in a state of mind to know the distinc- 
 
 guilty on tin- ground of insanity ; that was tion between right and wrong, and the nature 
 
 an issue far too vague, indefinite, and unde- of the act he committed, he was responsible.' 
 
 fined. The issue was, whether or not, when See R. v. Southey, 4 F. & F. 864.
 
 chap. II.] Committing Crimes. — Lunacy, Etc. 137 
 
 to any formal resolution ; but they all thought that in such a case a 
 witness of medical skill might be asked, whether in his judgment such 
 and such appearances were symptoms of insanity, and whether a long 
 fast, followed by a draught of strong liquor, was likely to produce a 
 paroxysm of the disorder in a person subject to it ? and that by such 
 questions the effect of his testimony might be got in an unexceptionable 
 manner. Several of the judges doubted whether the witness could be 
 asked on the very point which the jury were to decide ; viz., whether, 
 from the testimony given in the case, the act with which the prisoner 
 was charged was, in his opinion, an act of insanity ? (r) In a case of 
 maliciously wounding, where it was proposed to call a physician who 
 had heard the whole evidence, to give his opinion as to the insanity of 
 the prisoner, J. A. Park, J., after referring to the preceding case, allowed 
 the physician to be asked whether the facts and appearances proved 
 showed symptoms of insanity, (s) 
 
 Where the defence to an indictment for murder was that the pris- 
 oner was insane at the time he committed the act, and witnesses were 
 called to prove that insanity had existed in many members of the 
 prisoner's family and that he had been insane for three years, a phy- 
 sician, who had been in court during the whole trial, was asked by the 
 counsel for the prosecution ' whether, from all the evidence he had 
 heard, both for the prosecution and defence, he was of opinion that 
 the prisoner, at the time he did the act, was of unsound mind ? ' and 
 the opinion of the judges in answer to the fifth question (t) was cited 
 in support of the question ; Alderson, B., and Cresswell, J., held that 
 the question ought not to be put. The proper mode is to ask what 
 are the symptoms of insanity, or to take particular facts, and assum- 
 ing them to be true, to ask whether they indicate insanity. To take 
 the course suggested is really to substitute the witness for the jury, 
 and allow him to decide upon the whole case. The jury have the 
 facts before them, and they alone must interpret them by the general 
 opinions of scientific men (ic) 
 
 So on the trial of an ejectment where the question turned on the 
 sanity of the testator, and a physician was asked whether in his 
 opinion, from the facts proved in evidence, the testator was sane or 
 insane; Lord Campbell, C. J., said the witness might give general 
 scientific evidence on the causes and symptoms of insanity, but he 
 must not express an opinion as to the result of the evidence he had 
 heard with reference to the sanity or insanity of the testator; his 
 lordship saying peremptorily that he would not allow a physician to 
 be substituted for a jury, (v) 
 
 Where the defence of insanity has been set up, it has been the com- 
 mon practice to prove that other members of the prisoner's family 
 have been afflicted with insanity ; but it is a matter of fact that in- 
 sanity is often hereditary in a family, and therefore that fact should 
 be proved, in the first instance, by the testimony of medical men, and 
 
 (r) R. v. Wright, R. & R. 456. (v) Doe d. Bainbrigge v. Bainbrigge, 4 
 
 (s) R. v. Searle, 1 M. & Bob. 75. 1831. Cox, C. C. 454. The verdict was for the 
 
 (t) Supra, 126. plaintiff, which prevented this ruling from 
 
 (u) R. v. Frances, 4 Cox, C. C. 57, S. P. being questioned in the court above. 
 R. v. Burton, 3 F. & F. 772.
 
 138 Of Persons capable of [book i. 
 
 then the inquiry whether another member of the prisoner's family has 
 been insane will be legitimate, (w) 1 
 
 Where, in support of a defence of insanity the prisoner's counsel at- 
 tempted to quote from ' Cooper's Surgery ' the author's opinions on the 
 subject, in his address to the jury, on the ground that they were the 
 sentiments of one who had studied the subject, and submitted that it 
 was admissible in the same way as opinions of scientific men on matters 
 appertaining to foreign law ; Alderson, B., said : 'I should not allow you 
 to read a work on foreign law. Any person who was properly conver- i 
 sant with it might be examined ; but then he adds his own personal 
 knowledge and experience to the information he may have obtained 
 from books. We must have the evidence of individuals, not their 
 written opinions. You surely cannot contend that you may give the 
 book in evidence, and if not, what right have you to quote from it in 
 your address, and do that indirectly which you would not be per- 
 mitted to do in the ordinary course ? ' And on its being said that it 
 was certainly done in M'Naghten's case, Alderson, B., added, 'And 
 that shows still more strongly the necessity for a stringent adherence 
 to the rules laid down for our observance. But for the non-interposi- 
 tion of the judge in that case, you would not probably have thought 
 it necessary to make this struggle now.' (x) 
 
 The application of the rules and principles laid down in these cases 
 to each particular case as it may arise, will necessarily in many in- 
 stances be attended with difficulty ; more especially with regard to the 
 true interpretation of the expressions, which state that the prisoner, 
 in order to be a proper subject of exemption from punishment on the 
 ground of insanity, should appear to have been unable ' to distinguish 
 right from wrong,' or to discern ' that he was doing a wrong act,' or 
 should appear to have been ' totally deprived of his understanding and 
 memory ; ' as even in Hadfield's case his expressions when apprehended, 
 that ' he was tired of life,' that ' he wanted to get rid of it,' and that 
 ' he did not intend anything against the life of the King, but knew 
 that the attempt only would answer his purpose ; ' seem to show that 
 he must have been aware that he was doing a wrong act, though the 
 degree of its criminality might have been but imperfectly presented to 
 him, through the morbid delusion by which his senses and understand- 
 ing were affected. But it is clear that idle and frantic humours, 
 actions occasionally unaccountable and extraordinary, mere dejection 
 of spirits, or even such insanity as will sustain a commission of lunacy, 
 will not be sufficient to exempt a person from punishment who has 
 committed a criminal act. And it seems that though if there be a 
 total permanent want of reason, or if there be a total temporary want 
 
 (w) R. v. Tucket, 1 Cox, C. C. 103, Maule, J. 
 (x) R. v. Crouch, 1 Cox, C. C. 94. 
 
 American Note. 
 
 1 There appears to be considerable doubt v. P., 1 Parker, C. R. 481 ; P. v. McCann, 
 
 in America as to the admissibility of the 3 Parker, C. R. 272, as to enquiries into 
 
 opinions of persons not experts on questions sanity of other members of prisoner's family, 
 
 of insanity, see Florey v. Florey, 24 Ala. P. v. Smith, 31 Cal. 466; Newcomb v. S., 
 
 241; Choice v. S., 31 Geo. 424 ; Real v. P., 7 Miss. 383; S. v. Felter, 25 Iowa, 67 ; P. 
 
 42 N. Y. 270. As to admitting medical evi- v. Garoutt, 17 Mich. 9 ; S. v. Windsor, 5 
 
 dence on hypothetical statements, see Reed Harring. 512.
 
 chap, ii.] Committing Crimes. — Lunacy, Etc. 139 
 
 of it when the offence was committed, the prisoner will be entitled to 
 an acquittal; yet, if there be a partial degree of reason, a competent 
 use of it, sufficient to have restrained those passions which produced 
 the crime; if there be thought and design, a faculty to distinguish the 
 nature of actions, to discern the difference between moral good and 
 evil ; then, upon the fact of the offence proved, the judgment of the 
 law must take place, (y) 
 
 In Alison's Principles of the Criminal Law of Scotland (z) (and 
 there is no difference between the law of England and the law of 
 Scotland with reference to insanity), it is said, that ' to amount to a 
 complete bar of punishment, either at the time of committing the 
 offence, or of the trial, the insanity must have been of such a kind as 
 entirely to deprive the prisoner of the use of reason, as applied to the 
 act in question, and the knowledge that he was doing wrong in com- 
 mitting it. If, though somewhat deranged, he is able to distinguish 
 right from wrong, in his own case, and to know that he was doing 
 wrong in the act which he committed, he is liable to the full punish- 
 ment of his criminal acts.' (a) 
 
 If a man in his sound memory commits a capital offence, and before 
 arraignment for it he becomes mad, he ought not to be arraigned for it, 
 because he is not able to plead to it with that advice and caution that 
 he ought. And if, after he has pleaded, the prisoner become mad, he 
 shall not be tried, as he cannot make his defence. If, after he is tried 
 and found guilty, he loses his senses before judgment, judgment shall 
 not be pronounced; and if after judgment he becomes of non-sane 
 memory, execution shall be stayed; for, peradventure, says the human- 
 ity of the English law, had the prisoner been of sound memory, he 
 might have alleged something in stay of judgment or execution. ( &) 
 
 By 7 & 8 Geo. 4, c. 28, s. 2, if any person, being arraigned upon or 
 charged with any indictment or information for treason, felony, piracy, 
 or misdemeanor, shall stand mute of malice, or will not answer directly 
 to the indictment or information, in every such case it shall be lawful 
 for the court, if it shall so think fit, to order the proper officer to enter 
 a plea of ' not guilty,' on behalf of such person ; and the plea so en- 
 tered 'shall have the same force and effect as if such person had 
 actually pleaded the same.' A prisoner, when called upon to plead 
 to an indictment, stood mute, the jury were therefore sworn to try 
 whether he was mute of malice or by the visitation of God. A verdict 
 of mute of malice having been returned, the court ordered a plea of 
 ' not guilty ' to be entered on the record, (c) 
 
 Where, on a prisoner bemg brought up to plead, his counsel stated 
 
 (y) Per Yorke, Sol.-Gen., in Lord Fer- (z) P. 654. 
 
 rers's case, 19 Howell's St. Tri. 947, 948, et (a) Cited by Sir J. Campbell, Att.-Gen. 
 
 per Lawrence, J. R. v. Allen, Stafford Lent in R. v. Oxford, 9 C. & P. 532. 1 
 
 Assizes, 1807, MS. And see Lord Thur- (b) 4 Blac. Com. 25. 1 Hale, 35. 
 
 low's judgment in the Attorney-General v. (c) R. v. Schleter, 11 Cox, C. C. 409 ; as 
 
 Parnther, 3 Br. Cha. Ca. 441. to the mode of proceeding before this statute, 
 
 American Note. 
 
 1 If the insane delusion has reference to Gut, 13 Minn. 341 ; S. v. Simms, 71 Mo. 
 something wholly unconnected with the 538. 
 crime, it will afford no defence. S. v.
 
 140 Of Persons capable of [book i. 
 
 that he was insane, and a jury was sworn to try whether he was so or 
 not, Williams, J., held that the counsel for the prosecution should call 
 his witnesses to show that the prisoner was sane and capable of plead- 
 ing; as this was not so much an issue joined as a preliminary inquiry 
 for the information of the Court. (fT) But in a similar case, Cress- 
 well, J., held, notwithstanding the preceding case, that, as the pre- 
 sumption is that a man is sane, if the prisoner's counsel suggested 
 that he was insane, he must give evidence of the fact, (e) 
 
 But in case a person in a frenzy happen, by some oversight, or by 
 means of the gaoler, to plead to his indictment, and is put upon his 
 trial, and it appears to the Court upon his trial that he is mad, the 
 judge in his discretion may discharge the jury of him and remit him 
 to gaol to be tried after the recovery of his understanding, especially 
 in case any doubt appear upon the evidence touching his guilt, and 
 this in favorem vitce ; and if there be no colour of evidence to prove 
 him guilty, or if there be pregnant evidence to prove his insanity at 
 the time of the fact committed, then upon the same favour of life and 
 liberty it is fit that the trial proceed in order to his acquittal. (/) 
 
 The prisoner being arraigned on two indictments for murder, and 
 having with apparent intelligence pleaded to one and declined to plead 
 to the other, the plea of not guilty was entered for him by statute, 
 with the assent of counsel who appeared for him ; the case was then 
 opened, and the first witness examined, and it was then set up by his 
 counsel that he was insane and not in a fit state to be tried : held, that 
 the proper time for making that suggestion was before the prisoner 
 pleaded, and that, had it then been made, a jury should have been 
 impanelled to try the question whether he was sane and in a fit state 
 to be tried ; but that, as the trial had been begun, and it would be 
 manifestly inconvenient to recommence the trial of the collateral 
 issue, and as, moreover, it appeared that the evidence as to the pris- 
 oner's present sanity was very much mixed up with the general ques- 
 tion of his sanity, it was open to the Court, under 39 & 40 Geo. 3, 
 c. 94, to take the whole of the evidence, and then leave to the jury both 
 questions as to the prisoner's state of mind at the time of the act, and 
 at the time of trial, (g) 
 
 A person deaf and dumb from four years of age was indicted for 
 larceny from the person, and not answering when called upon to plead, 
 the jury found the prisoner ' mute by the visitation of God.' The 
 Court then ordered a plea of ' not guilty 'to be entered, and the trial 
 to proceed. A relation of the person, who could in some degree com- 
 municate with the prisoner by means of signs, was sworn to interpret 
 the nature of the proceedings and the evidence, and the Court assigned 
 counsel to the prisoner. At the conclusion of the case, after the sum- 
 ming up of the presiding judge, the jury found the prisoner guilty, 
 but in answer to a question left to them in the summing up found 
 that the prisoner 'was not capable of understanding, and, as a fact, 
 had not understood the nature of the proceedings,' — Held, that the 
 
 see 1 Hawk. P. C. c. 1, s. 4 : Ley's case, 1 (d) R. v. Davies, 3 C. & K. 328. 
 
 Lewin, 239. Hullock, B. ; Bac. Abr. Idiot (e) R. v. Turton, 6 Cox. C. C. 385. 
 
 (B). 1 Hale, 33, 35, 36 ; Somerville's case, (f) Bac. Abr. Idiot (B).' 1 Hale, 35, 36, 
 
 1 And. 107. 1 Sav. 50, 56; Fost. 46. Kel. per Foster, J. 18 St. Tri. 411. 
 13. 1 Lev. 61. 1 Sid. 72. (g) R. v. Southey, 4 F. & F. 864.
 
 chap. II.] Committing Crimes. — Lunacy, Etc. 141 
 
 above finding shewed that the prisoner was at the time of the trial of 
 non-sane mind ; therefore, that the Court were wrong in entering a 
 plea of not guilty, and in allowing the trial to proceed. That they 
 ought to have discharged the jury, and ordered the prisoner to be de- 
 tained during Her Majesty's pleasure, under 39 & 40 Geo. 3, c. 94, s. 2 ; 
 and the conviction was quashed, (h) 
 
 By 39 & 40 Geo. 3, c. 94, s. 2, ' if any person indicted for any offence 
 shall be insane, and shall upon arraignment be found so to be by a 
 jury lawfully impanelled for that purpose, so that such person cannot 
 be tried upon such indictment ; or if upon the trial of any person 
 so indicted, such person shall appear to the jury charged with such 
 indictment to be insane, it shall be lawful for the Court, before whom 
 any such person shall be brought to be arraigned or tried as aforesaid, 
 to direct such finding to be recorded, and thereupon to order such per- 
 son to be kept in strict custody till his Majesty's pleasure shall be 
 known.' And it is further enacted, ' that if any person charged with 
 any offence shall be brought before any Court to be discharged for 
 want of prosecution, and such person shall appear to be insane, it 
 shall be lawful for such Court to order a jury to be impanelled to try 
 the sanity of such person ; and if the jury so impanelled shall find 
 such person to be insane, it shall be lawful for such Court to order 
 such person to be kept in strict custody, in such place, and in such 
 manner as to such Court shall seem fit, until his Majesty's pleasure 
 shall be known.' 
 
 The prisoner was indicted for assaulting one E. Earl, and beating 
 her with intent to murder her. The jury found specially that he was 
 insane at the time of committing the offence, and also at the time of 
 the trial, and that they acquitted him on account of such insanity, and 
 the judge ordered him to be kept in custody accordingly. The judges 
 were unanimously of opinion that the second section applies to all 
 cases, though only misdemeanors, — and that though mere insanity 
 at the time of the offence would not have warranted an order, yet 
 insanity found at the time of the trial did warrant it. (i) 
 
 By the Trial of Lunatics Act, 1883 (46 & 47 Vict. c. 38), s. 2, 
 (1) 'where in any indictment or information any act or omission is 
 charged against any person as an offence, and it is given in evidence on 
 the trial of such person for that offence, that he was insane so as not 
 to be responsible according to law for his actions, at the time when the 
 act was done or omission made, then if it appears to the jury before 
 whom such person is tried, that he did the act or made the omission 
 charged, but was insane as aforesaid at the time when he did or made 
 the same, the jury shall return a special verdict to the effect that the 
 accused was guilty of the act or omission charged against him, but 
 was insane as aforesaid, at the time when he did the act or made the 
 omission.' 
 
 (2) 'When such special verdict is found the Court shall order the 
 accused to be kept in custody as a criminal lunatic, in such place and 
 in such manner as the Court shall direct till Her Majesty's pleasure 
 shall be known, and it shall be lawful for Her Majesty thereupon and 
 
 (h) R. v. Berry, 1 Q. B. D. 447; 45 L. J. Summer Assizes, 1820, Hil. T. 1821, MS. 
 M. C. 123 ; 13 Cox, C. C. 189. Bayley, J., and Russ. & Ry. 430. 
 
 (i) R. v. Little, cor. Wood, B. Surrey
 
 142 Of Persons capable of [book i. 
 
 from time to time, to give such order for the safe custody of the said 
 person during pleasure, in such place and in such manner as to Her 
 Majesty may seem fit.' 
 
 By the Criminal Lunatics Act, 1884, (J) (47 & 48 Vict. c. 64), s. 2 
 (1), 'where a prisoner is certified in manner provided by this Act to 
 be insane, a Secretary of State may, if he thinks fit, by warrant, (jj) 
 direct such prisoner to be removed to the asylum named in the war- 
 rant, and thereupon such prisoner shall be removed to and received 
 in such asylum and subject to the provisions of this Act, relating to 
 conditional discharge, or otherwise, shall be detained therein, or in any 
 other asylum to which he may be transferred in pursuance of this 
 Act, as a criminal lunatic until he ceases to be a criminal lunatic' 
 
 (2) 'A person shall cease to be a criminal lunatic if he is remitted 
 to prison, or absolutely discharged in manner provided by this Act, or 
 if any term of penal servitude or imprisonment to which he may be 
 subject determines.' 
 
 Sec. 3 makes provision for visiting justices to call to their assistance 
 two medical men to examine any prisoner not under sentence of 
 death, and gives power to them, after due examination, to certify that 
 he is insane. 
 
 Sec. 4 provides for an enquiry by the Secretary of State, where a 
 prisoner under sentence of death appears to be insane. 
 
 By sec. 3, ' where it is certified by two legally qualified medical 
 practitioners that a person being a criminal lunatic (not being a per- 
 son with respect to whom a special verdict has been returned, that he 
 was guilty of the act or omission charged against him, but was insane 
 at the time when he committed the act or made the omission) is 
 sane, a Secretary of State, if satisfied that it is proper so to do, may by 
 warrant direct such person to be remitted to prison to be dealt with 
 according to law.' 
 
 Where a prisoner, indicted for a misdemeanor in uttering seditious 
 words, upon his arraignment showed symptoms of insanity, and an 
 inquest was forthwith taken under the statute, it was held that the 
 jury might form their judgment of the state of the mind of the pris- 
 oner from his demeanor while the inquest was being taken, and might 
 thereupon find him to be insane without any evidence being given as to 
 his present state. And that it was unnecessary to ask him whether he 
 would cross-examine the witnesses or offer any remarks or evidence, 
 as that would be a useless prolongation of a painful proceeding. (k) So 
 the jury may take into consideration both the conduct of the prisoner 
 in their presence and the evidence given. (/) 
 
 Where a prisoner's counsel set up the defence of insanity for him, 
 and the prisoner objected to that defence, asserting that he was not 
 insane, he was allowed to suggest questions to be put to the witnesses 
 for the prosecution, to negative the supposition that he was insane ; 
 
 (j) See also as to disposal of criminal diligentry inquire and true presentment mak* 
 
 lunatics 23 & 24 Vic, c. 75 ; 27 & 28 Vic, for and on behalf of our Sovereign Lady the 
 
 c. 29 ; 30 & 31 Vic, c. 12. Queen, whether J. G., the defendant, be 
 
 (jj) As to this being signed by under- insane or not, and a true verdict give accord- 
 secretary, see sec. 15. ing to the best of your understanding ; so 
 
 (/.•) R. v. Goode, 7 Ad. & E. 536. The help you God.' 
 jury were sworn in hcec verba, ' You shall (/) R. v. Davies, 6 Cox, C. C. 326.
 
 chap. II.] CommiUing Crimes. — Lunacy, Etc. 143 
 
 and the judge, at the request of the prisoner, allowed additional 
 witnesses to be called on his behalf for the same purpose, (m) 
 
 If the jury are of opinion that the prisoner did not in fact do all 
 that the law requires to constitute the offence charged, supposing the 
 prisoner had been sane, they must find him not guilty generally, and 
 the Court have no power to order his detention, although the jury 
 should find that he was in fact insane. Where, therefore, on an in- 
 dictment for treason, which stated, as an overt act, that the prisoner 
 discharged a pistol loaded with powder and a bullet, the jury found 
 that the prisoner was insane at the time when he discharged the 
 pistol, but whether the pistol was loaded with ball or not there 
 was not satisfactory evidence, the Court expressed a strong opinion 
 that the case was not within the statute, (n) 
 
 If the acts proved to have been done by the prisoner be such as 
 would have amounted to the crime charged, if they had been done by 
 a person of sane mind, the grand jury are bound to find a bill, in order 
 that the prisoner may be confined, (o) 
 
 If a prisoner have not at the time of the trial, from the defect of his 
 faculties, sufficient intelligence to understand the nature of the pro- 
 ceedings against him, the jury ought to find that he is not sane, and 
 upon such finding he may be ordered to be kept in custody under this 
 Act. (p) 
 
 Persons drunk. 1 — With respect "to a person non compos mentis 
 from drunkenness, a species of madness which has been termed demen- 
 tia affectata, it is a settled rule, that if the drunkenness be voluntary, 
 it cannot excuse a man from the commission of any crime, (q) but on 
 the contrary must be considered as an aggravation of whatever he 
 does amiss, (r) Yet if a person, by the unskilf ulness of his physician, 
 or by the contrivance of his enemies, eat or drink such a thing as 
 causes frenzy, this puts him in the same condition with any other 
 frenzy, and equally excuses him ; also, if by one or more such 
 practices an habitual or fixed frenzy be caused, though this madness 
 was contracted by the vice and will of the party > yet the habitual 
 and fixed frenzy caused thereby puts the man in the same condition 
 as if it were contracted at first involuntarily, (s) 
 
 In a case of maliciously stabbing, a very learned judge observed, that 
 with regard to the intention, drunkenness might perhaps be adverted 
 to according to the nature of the instrument used. If a man used a 
 stick, a jury would not infer a malicious intent so strongly against 
 
 (m) R. v. Pearce,9 C. & P. 667. Bosan- Cq) Co. Lit. 247. 1 Hale, 32. 1 Hawk, 
 
 quet, J. P. C. c. 1, s. 6. 
 
 (n) R. v. Oxford, 9 C. & P. 525, Lord (r) 4 Blac. Com. 26. Plowd. 19. Co. 
 
 Denman, C. J., Aldersou, B., and- Patte- Lit. 247. Nam ovine crimen cbrietasincend it 
 
 son, J. et detegit. And see Beverley's case, 4 Co. 
 
 (o) R. v. Hodges, 8 C. & P. 195, Alder- 125. 
 •son, B. (s) 1 Hale, 32. Though voluntary drunk- 
 
 (p) R. v. Dyson, 7 C. &P. 305, n. S. C. enness cannot excuse from the commission 
 
 1 Lewin, 64. Parke, B. of crime, yet where, as upon a charge of 
 
 American Note. 
 
 1 In America the law is to the same effect enters into the crime. A man labouring 
 and drunkenness is no excuse for crime, but under delirium tremens or insane from drunk- 
 it is always an element for the consideration enness is not responsible, 
 of the jury wbere the epiestion of intention
 
 144 Of Persons capable of [book i. 
 
 him, if drunk, when he made an intemperate use of it, as they 
 would if he had used a different kind of weapon ; but where a dan- 
 gerous instrument was used, which, if used, must produce grievous 
 bodily harm, drunkenness could have no effect on the consideration of 
 the malicious intent of the party, (t) So drunkenness is often very 
 material where the question is as to the intent with which an act was 
 done. 2 On an indictment for inflicting a bodily injury dangerous to 
 life, with intent to murder, it appeared that the prisoners were both 
 very drunk at the time, and Patteson, J., told the jury, that ' although 
 drunkenness is no excuse for any crime whatever, yet it is often of 
 very great importance in cases where it is a question of intention. A 
 person may be so drunk as to be utterly unable to form any inten- 
 tion at all, and yet he may be guilty of very great violence.' (u) So 
 where a prisoner was indicted for shooting with intent to murder, and 
 he was shown to have been intoxicated shortly before he fired the 
 shot ; Coleridge, J., told the jury, that ' drunkenness is ordinarily 
 neither a defence nor excuse for crime, and where it is available as a 
 partial answer to a charge, it rests on the prisoner to prove it, and it 
 is not enough that he was excited or rendered more irritable, unless 
 the intoxication was such as to prevent his restraining himself from 
 committing the act in question, or to take away from him the power 
 of forming any specific intention.' (v) And where, on an indictment 
 for attempting to commit suicide, it appeared that the prisoner had 
 thrown herself into a well, and the witness who proved this, stated 
 that at the time she did so, she was so drunk as not to know what 
 she was about ; Jervis, C. J., said, ' If the prisoner was so drunk as 
 not to know what she was about, how can you say that she intended 
 to destroy herself ? ' (w) So drunkenness may be taken into considera- 
 tion in cases where what the law deems sufficient provocation has been 
 given, because the question is, in such cases, whether the fatal act is 
 to be attributed to the passion of anger excited by the previous pro- 
 vocation, and that passion is more easily excitable in a person when 
 in a state of intoxication than when he is sober, (x) Where the 
 
 murder, the material question is, whether an acted upon that case, but afterwards re- 
 act was premeditated or done only with tracted his opinion, and there is no doubt 
 sadden heat and impulse, the fact of the party that that case is not law.' R. v. Carroll, 7 
 being intoxicated has been holden to be a C. & P. 145. * 
 
 circumstance proper to be taken into consid- (t) R. v. Meakin, 7 C. & P. 297. Alder- 
 
 eration. By Holroyd, J., in R. v. Grindley, son, B. 
 
 Worcester Sum. Ass. 1819, MS. But in a (u) R. v. Cruse, 8 C. & P. 541. R. v. 
 
 case of murder by stabbing with a bayonet, Doherty, 16 Cox, C. C. 306. 
 where R. v. Grindley was relied upon, J. A. (v) R. v. Monkhouse, 4 Cox, C. C. 55. 
 
 Park, J., in the presence of Littledale, J., \w) R. v. Moore, 3 C. & K. 319. 
 
 said, ' Highly as I respect that late excellent (x) R. v. Thomas, 7 C. & P. 817. Parke, 
 
 Judge (Holroyd), I differ from him, and my B. Pearson's case, 2 Lewin, 144. J. A. 
 
 brother Littledale agrees with me. He once Park, J. 
 
 American Notes. 
 
 1 There are many American cases which specific intent to take life, intoxication de- 
 go to shew that an habitual frenzy from stroying intent will reduce the murder to the 
 drunkenness will excuse crime, Bishop, i. second degree, Bishop, i. ss. 409, 410. Mr. 
 s. 406. Bishop seems of opinion that in larceny there 
 
 2 In America where by statute murder is must be a specific intent to steal, and there- 
 divided into two degrees, and to constitute fore intoxication destroying intent will afford 
 murder in the first degree, there must be a a defence.
 
 chap. II.] Committing Crimes. — Lunacy, Etc. 145 
 
 question is whether words have been uttered with a deliberate purpose, 
 or are merely low and idle expressions, the drunkenness of the 
 party uttering them is proper to be considered, (y) But if there is 
 really a previous determination to resent a slight affront in a bar- 
 barous manner, the state of drunkenness in which the prisoner was, 
 ought not to be regarded ; for it would furnish no excuse, (y) So, 
 upon an indictment for stabbing, the jury may take into their con- 
 sideration, among other circumstances, the fact of the prisoner being 
 drunk at the time, in order to determine whether he acted under a 
 bona fide apprehension that his person or property was about to be 
 attacked, (z) So on an indictment for an assault, in considering 
 whether the prisoner apprehended an assault upon himself, the jury 
 may take into consideration the state of drunkenness in which he 
 was. (a) Where a man feloniously wounded another while suffering 
 from delirium tremens it was held that he was insane at the time he 
 committed the act. (b) 
 
 Subjection to power of others. — III. Persons are properly excused 
 from those acts which are not done of their own free will, but in sub- 
 jection to the power of others, (c) Thus, though a legislator establish 
 iniquity by a law, and command the subject to do an act contrary 
 to religion and sound morality ; yet obedience to such laws, while in 
 being, is a sufficient extenuation of civil guilt before the municipal 
 tribunal ; though a different decree will be pronounced in foro con- 
 scientice. (d) And actual force upon the person and present fear of 
 death may, in some cases, excuse a criminal act. Thus, although the 
 fear of having houses burnt or goods spoiled is no excuse in law for 
 joining and marching with rebels, yet an actual force upon the person 
 and present fear of death may form such excuse, provided they con- 
 tinue all the time during which the party remains with the rebels, (e) J 
 And in general the person committing a crime will not be answerable 
 if he was not a free agent, and was subject to actual force at the time 
 the act was done. Thus, if A. by force take the arm of B., in which 
 is a weapon, and therewith kill C., A. is guilty of murder, but not B. : 
 but if it be only a moral force put upon B., as by threatening him 
 with duress or imprisonment, or even by an assault to the peril of his 
 life, in order to compel him to kill C, it is no legal excuse, (f) An 
 idiot or lunatic, or a child so young as not to be punishable for his 
 criminal act, when made use of for the purpose of committing crimes, 
 are merely the instruments of the procurer, who will be answerable as 
 a principal, (g) As to persons in private relations, the principal case 
 where constraint of a superior is allowed as an excuse for criminal 
 
 ly) R. v. Thomas, ibid. (d) 4 Blac. Com. 27. 
 
 (?) Marshall's case, 1 Lewin, 76. J. A. (e) Per Lee, C. J. 18 Sta. Tri. 393, 394. 
 
 Park, J. Goodier's case, ibid. Parke, J. R. v. Tyler, 8 C. & P. 616. 
 
 (a) R. v. Gamlen, 1 F. & F. 90. Crow- (f) 1 Hale, 433. 1 East, P. C. c. 5, 
 der, J. s. 12, p. 225. 
 
 (b) R. v. Davis, 14 Cox, C. C. 563. (g) 1 Hawk. P. C. c. 31, s. 7. 1 East. 
 
 (c) 1 Hale, 43. 4 Blac. Com. 27. P. C. c. 5, s. 14, p. 228. 
 
 American Note. 
 1 See TJ. S. v. Haskell, 4 Wash. C. C. 102. U. S. v. Vigol, 2 Val. 346. 
 
 ■VOL. I. — 10
 
 146 
 
 Of Persons capable of 
 
 [book i. 
 
 misconduct proceeds upon the matrimonial subjection of the wife to 
 her husband; for neither a child nor a servant is excused the com- 
 mission of any crime, whether capital or not capital, by the command 
 or coercion of the parent or master, (h) 
 
 Feme covert. 1 — But a feme covert is so much favoured in respect 
 of that power and authority which her husband has over her, that 
 she shall not suffer any punishment for committing a bare theft, or 
 even a burglary, by the coercion of her husband, or in his company, 
 which the law construes a coercion, (i) But this is only the pre- 
 sumption of law ; so that if upon the evidence it clearly appear 
 that the wife was not drawn to the offence by her husband, but 
 that she was the principal inciter of it, she is guilty as well as 
 the husband. And if she be any way guilty of procuring her hus- 
 band to commit the offence, it seems to make her an accessory before 
 the fact in the same manner as if she had been sole, (j) And if she 
 commit a theft of her own voluntary act, or by the bare command 
 of her husband, or if she be guilty of murder, treason, or robbery, (k) 
 in company with, or by coercion of her husband, (kk) she is pun- 
 ishable as much as if she were sole. (I) And she will be guilty in 
 
 (h) 1 Hale, 44, 516. 1 Hawk. P. C. 
 c. 1, s. 14. Moor. 813. Kel. 34. 
 
 (i) 1 Hale, 45. 1 Hawk. P. C. c. 1, 
 s. 9. 4 Blac. Coiu/28. Kel. 31. According 
 to some, if a wife commit a larceny by the 
 command of her husbaud, she is not guilty ; 
 which seems to be the law if the husband be 
 present, but not if he be absent at the time 
 and place of the felony committed. 1 Hale, 
 45. 
 
 (j) 1 Hale, 516. 2 Hawk. P. C. c. 29, 
 s. 24. 
 
 (k) It seems this is not so as to robbery, 
 see R. v. Torpey, 12 Cox, C. C. 45. and R. 
 v. Dykes, 15 Cox, C. C. 771, where Stephen, 
 J., directed a wife to be acquitted on an 
 indictment for highway robbery with vio- 
 lence jointly with her husband, the jury 
 having found that she had acted under her 
 husband's compulsion. See note (I) infra. 
 
 [kk) R. v. Buncombe, 1 Cox, C. C. 183. 
 
 (/) 1 Hawk. P. C. c. 1, s. 11. 1 Hale, 
 45, 47, 48, 516. Kel. 31. 2 Blac. Com. 
 29. The reason given is the heinousness of 
 those crimes. I find no decision which war- 
 rants the position in the text, as to treason, 
 murder, or robbery. Somerville's case, 1 
 And. 104, which is the only case where hus- 
 band and wife have been convicted of trea- 
 son, only shows that a wife may be convicted 
 of treason with her husband. There Arden 
 and his wife were charged with procuring 
 Somerville to destroy the Queen, and both 
 found guilty, but as none of the evidence is 
 stated, it may have been that the wife was 
 the instigator, and both properly convicted. 
 In Somerset's case, which is the only case 
 of a wife convicted, as well as her husband, 
 as an accessory to a murder, according to 3 
 
 Inst. 50, the Earl and Countess were indicted 
 as accessories before the fact, to the murder 
 of Sir T. Overbury, the wife was arraigned 
 alone first, and pleaded guilty, and being 
 asked what she had to say why judgment of 
 death should not be given against her, she 
 said, 'I can much aggravate, but nothing 
 extenuate my fault.' (2 St. Tr. 957.) As- 
 suming, therefore, that the indictment was 
 joint against both, the case only proves that 
 the wife may properly be convicted upon 
 her own confession, which indicates that 
 she was the more guilty party ; as it is clear 
 she was in this case. See Hume's Hist. 
 Eng. vol. 6, p. 68, &c. But as the Earl and 
 Countess were separately arraigned, and on 
 different days, and as the indictment against 
 the Earl, as recited in his pardon (2 St. Tr. 
 1014), is against him alone, I infer that the. 
 Countess was indicted alone ; if so, the case 
 is merely that of a wife pleading guilty to an 
 indictment charging her alone as accessory, 
 and unless in such a case she either pleaded 
 that she committed the offence in company 
 with her husband (as it seems she may, 
 1 Hale, 47. M. 37, Ed. 3. Rot. 34), or 
 such appeared to be the case upon her trial, 
 no question as to coercion could arise. In 
 R. v. Alison, 8 C. & P. 418, Patteson, J., 
 mentions an old case, where a husband and 
 wife, intending to destroy themselves, took 
 poison together ; the husband died, but the 
 wife recovered, and was tried for the mur- 
 der, and 'acquitted solely on the ground that, 
 being the wife of the deceased, she was under 
 his control, and inasmuch as the proposal to 
 commit suicide had been first suggested by 
 him, it was considered that she was not a 
 free agent ; ' but I know from the very 
 
 American Note. 
 
 1 See Davis v. S., 15 Ohio, 72 ; Freel v. S., 21 Ark. 212.
 
 chap. 
 
 no 
 
 Committing Crimes. — Coverture. 
 
 147 
 
 the same manner of all those crimes which, like murder, are mala in 
 se, and prohibited by the law of nature, (m) And in one case it 
 appears to have been held by all the judges, upon an indictment 
 against a married woman, for falsely swearing herself to be next of 
 kin and procuring administration, that she was guilty of the offence, 
 though her husband was with her when she took the oath, (n) But 
 upon an indictment for disposing of forged notes, it was ruled that 
 a, woman was protected by being the wife of a man with whom she 
 was indicted, who disposed of them in her presence, (o) So, where 
 on an indictment against husband and wife for feloniously wounding 
 with intent to disfigure, the jury found that the wife acted under the 
 •coercion of her husband, and did not herself personally inflict any 
 violence upon the prosecutor, it was held, that she ought to have been 
 acquitted, (p) 
 
 learned judge himself that he guarded 
 against subscribing to the reason given for 
 this decision. Probably the case referred to 
 is an anonymous one, Moor. 754, where it is 
 said, the question was, whether it was mur- 
 der in the woman, and the recorder caused 
 the special matter to be found, but no deci- 
 sion is stated, nor have I been able to find 
 the case elsewhere. Before Somerville's 
 case, 26 Eliz., and Somerset's case, a.d. 
 1615, I rind no exception to the general rule 
 that the coercion of the husband excuses the 
 act of the wife. (See 27 Ass. 40, Stainf. P. 
 C. 26, 27, 142. Poulton de Pace Regis, 
 130. Br. Ab. Coron. 108. Fitz. Ab. Coron. 
 130, 180, 199.) But after those cases I find 
 the following exceptions in the Books : — 
 Bac. Max. 57, except treason only. Dalton, 
 c. 147, treason and murder, citing for the 
 latter Mar. Lect. 12 (which I conceive refers 
 to the reading of Marrow, a Master in Chan- 
 cery, in the time of Henry VII. See Willes 
 v. Bridger, 2 B. k A. 282). 1 Hale, P. C. 
 pp. 45, 47, treason, murder, and homi- 
 cide; and p. 434, treason, murder, and man- 
 . slaughter. Kelyng, 31, an obiter dictum, 
 murder only. Hawk. b. 1, c. 1, s. 11, trea- 
 son, murder, and robbery. Blac. Com. vol. 1, 
 p. 444, treason and murder ; vol. 4, p. 29, 
 treason, and mala in se, as murder and the 
 like. Hale, therefore, alone excepts man- 
 slaughter, and Hawkins introduces robbery, 
 without any authority for so doing ; and, on 
 the contrary, in R. v. Cruse, 8 C. & P. 545, 
 a case is cited, where Burrough, J., held 
 that the rule extended to robbery. It seems 
 long to have been considered that the mere 
 presence of the husband was a coercion (see 
 4 Blac. Com. 28), and it was so contended in 
 R. v. Cruse ; and Bac. Max. 56, expressly 
 states that a wife can neither be principal nor 
 accessory by joining with her husband in a 
 felony, because the law intends her to have 
 no will : and in the next page he says, ' If 
 husband and wife join in committing treason, 
 the necessity of obedience doth not excuse 
 the wife's offence, as it does in felony.' Now 
 if this means that it does not absolutely ex- 
 cuse, as he has stated in the previous page, 
 
 it is warranted by Somerville's case, which 
 shows that a wife may be guilty of treason 
 in company with her husband, and which 
 would be an exception to the general rule, as 
 stated by Bacon. So also would the con- 
 viction of a wife with her husband for mur- 
 der in any case be an exception to the same 
 rule. Dalton cites the exception from Bacon 
 without the rule, and Hale follows Dalton, 
 and the other writers follow Hale ; and it 
 seems by no means improbable that the ex- 
 ceptions of treason and murder, which seem 
 to have sprung from Somerville's and Somer- 
 set's cases, and which were probably excep- 
 tions to the rule as stated by Bacon, have 
 been coutinued by writers without adverting 
 to their origin, or observing that the pres- 
 ence of the husband is no longer considered 
 an absolute excuse, but only affords a prima 
 facie presumption that the wife acted by his 
 coercion. See the learned argument of Mr. 
 Carrington in R. v. Cruse, 8 C. & P. 541. 
 In 1849, G. Manning and his wife were 
 jointly convicted of murder, but the question 
 discussed in this note was not raised, prob- 
 ably because upon the evidence it was plain 
 she was the more active party in the offence. 
 The case as reported 2 C. & K. 887, and 1 
 D. C. C. R. 467, does not advert to this 
 question, but the charge of the recorder to 
 the grand jury, 2 C. & K. 903, contains some 
 observations upon it. See R. v. Smith, 1 
 D. & B. 553, which is quite in accordance 
 with this note, infra. C. S. G. 
 
 (m) 4 Blac. Com. 29. This position of 
 Blackstone, J., is obviously much too large, 
 as it includes larceny and burglary. C. S. G. 
 
 (n) R.v. Dicks, in 1871, 2 MS. Sum. tit. 
 Of Offenders, and MS., Bayley, J. 
 
 (o) R. v. Atkinson, post, 154. 
 
 (p) R. v. Smith, 1 D. & B. 553. The 
 facts of this case (except as above stated) 
 were not submitted to the judges. As the 
 wife met the prosecutor at a railway station, 
 and induced him to go to a lonely spot where 
 her husband wounded him (see the note to 
 the case), it is clear she was an accessory 
 before the fact, and responsible as such for 
 her acts in the absence of her husband, and
 
 148 Of Persons capable of [book i. 
 
 Where, on an indictment against husband and wife for jointly re- 
 ceiving stolen goods, it nppeared that a burglary was committed by 
 their two (laughters, who were traced to Cranbrooke, where their 
 father and mother then lived, with a quantity of the property stolen, 
 with which they went towards their father's house ; and on the same 
 night, between nine and ten o'clock, the mother and her two daughters 
 went to the house of a draper, and brought (q) two trunks, a red and a 
 blue one, and a person who lived next door to the prisoners saw them 
 and their two daughters, on the next day, in the kitchen, where the 
 two daughters were packing a blue box, and the two boxes were after- 
 wards found in London, in consequence of a statement made by the 
 wife, who, when the house was searched, denied that any of the stolen 
 goods were in it, and made various other false statements ; and a quan- 
 tity of the stolen property was found concealed in different parts of 
 the house ; the jury found both the husband and wife guilty ; it was 
 held, that as the charge against the husband and wife was joint, and 
 it had not been left to the jury to say whether she received the goods 
 in the absence of the husband, the conviction of the wife could not be 
 supported, though she had been more active than her husband. (?*) 
 
 On an indictment against husband and wife for receiving stolen sugar 
 it appeared that the husband received it in the first instance in the 
 absence of his wife. Some remains of the sugar were found on search- 
 ing in a sink in the kitchen, and the wife stated that she and her 
 daughter had washed all the sugar away, and that they had burnt the 
 bags in which it was contained, and that she thought it a hard case 
 that she and her husband should be at a loss of four or five pounds. 
 Coltman, J., told the jury that ' if the husband received the property, 
 knowing it to be stolen, and if the wife received it from him with the 
 like knowledge, and with the purpose of aiding and assisting him in 
 the object which he had in view in receiving it, by turning it to 
 pecuniary profit or in other like manner, although -prima facie she 
 might be supposed to be acting under the coercion of her husband, that 
 was rebutted by the active part which she took in the matter with the 
 intention above mentioned. But if the part she took was merely for 
 the purpose of concealing her husband's guilt, and of screening him 
 from the consequences, then she ought to be acquitted. A wife cannot 
 be convicted of harbouring her husband, when he has committed a 
 felony, and the mere circumstance of her attempting to conceal what 
 may lead to his detection appears to come within the same principle.' (s) 
 
 On an indictment against a wife for receiving stolen goods, it appeared 
 that her husband stole the goods from a shop, and delivered them into 
 her hands. Whether the articles were stolen at one or at several 
 times, or delivered to the prisoner at one or at different times, did not 
 appear. The husband absconded, his house was searched, and a box taken 
 
 under the 11 & 12 Vict. c. 46, s. 1, she ranted by the case, which, at most, only 
 
 ought to have been convicted as such acces- decides that where there is no evidence what- 
 
 sory. C. S. G. ever that the wife was present when the 
 
 (q) So in the report ; quivrc, bought. goods were received, or of her conduct when 
 
 (/) R. v. Archer, R. & M. 143. The they were received, she ought not to be 
 
 marginal note is ' upon a joint charge against jointly convicted with her husband. C. S. G. 
 
 husband and wife, of receiving stolen goods. (s) R. v. M'Clarens, 3 Cox, C. C. 425. 
 
 the wife cannot, properly, be convicted, if The wife was acquitted. 
 
 the husband is,' which seems not to be war-
 
 chap. II.] Committing Crimes. — Coverture. 149 
 
 from the prisoner, after a struggle on her part to retain it. It con- 
 tained pawn-tickets which related to the stolen goods. Several of these 
 tickets had been given for articles pledged by the prisoner, who falsely 
 stated as to some that they were birthday presents, and as to others 
 that they were articles in which she dealt. In two instances the 
 prisoner had sent persons to pledge some of the articles, and had re- 
 ceived the pawn-tickets and money lent by the pawnbrokers. The 
 jury were told that, as her husband had delivered the stolen articles to 
 the prisoner, the law presumed that she acted under his control in 
 receiving them ; but that this presumption might be rebutted : if 
 therefore they were satisfied that at the time when the prisoner 
 received the articles she knew that they were stolen, and in receiv- 
 ing them acted not by reason of any coercion of her husband, but 
 voluntarily, and with a fraudulent intention, she might be found 
 guilty ; and on her being found guilty the questions were reserved, 
 whether the direction was right, and whether on the evidence there 
 was any case for the jury ; and it was held that the case failed on 
 both points ; if there had been plenty of evidence there would have 
 been no case to go to the jury ; but it appeared that there was no 
 evidence at all. (t) 
 
 Where, on an indictment for larceny, it appeared that the goods 
 were found in the house of the prisoner's husband, who was a blind 
 man, and when they were found the prisoner said she had bought 
 them a long time before ; Erie, J., said that if the prisoner had said 
 nothing, and the goods had simply been found in the house of the 
 husband, there would have been no evidence to go to the jury. But 
 as she said she bought the goods, it must be left to the jury to 
 decide whether the goods were in the possession of the prisoner or 
 her husband ; and the jury were told that if they were of opinion 
 that the goods were in the possession of the wife without the consent 
 and control of her husband, they must find her guilty, (u) 
 
 The prisoner was indicted together with her husband and one Prishous 
 for burglary and receiving. The jury found Prishous guilty of house- 
 breaking, and the prisoner and her husband of receiving. Part of 
 the stolen property was found in the house where the prisoner and 
 her husband lived together, and the evidence warranted the jury in 
 convicting the husband of receiving; but the only evidence which 
 affected the prisoner was that, some time after the robbery, in the 
 absence of her husband, she produced a quantity of the stolen property, 
 and said it was to be destroyed, and said she had been changing some 
 foreign money, and thought she was going to be taken up for it, and 
 asked a young woman to come down, if she were taken, and say a 
 
 (t) K. v. Brooks, 1 Dears. C. C. 184. necklace for her, and he does so in her ab- 
 
 This decision is clearly right on the ground sence, delivers it to her, and she wears it ; 
 
 that there was no evidence whatever as to or, suppose a thief brings stolen goods to a 
 
 the guilty knowledge or conduct of the pris- house, and the husband declines to receive 
 
 oner at the time the goods were received, them, but is induced by the wife so to do, 
 
 Parke, B., said that, as the prisoner received and afterwards the husband delivers them to 
 
 the goods from her husband, 'it is difficult the wife ; it cannot be doubted that in these 
 
 to see how she could be guilty of this offence.' and the like cases she may be convicted, for 
 
 With all deference, it is perfectly easy to the plain reason that she is acting in no way 
 
 suggest cases where a wife may be convicted under his coercion. C. S. G. 
 of receiving stolen goods from her husband. (n) R. v. Banks, 1 Cox, C. C. 286. 
 
 Suppose she incites him to steal a diamond
 
 150 Of Persons capable of [book i. 
 
 foreign captain had given her part of the stolen property. It was 
 (■(intended that there was no evidence that she received the property 
 either hi the absence of her husband or from any other person than 
 him ; and that if there was evidence for the jury, the question would 
 be whether she received it from him, and if not, whether she received 
 it in his absence ; but Martin, B., ruled that there was evidence for 
 the jury, and did not leave either of these questions to them. It was 
 held, however, that the questions ought to have been left to the jury, 
 and it was perfectly consistent with the facts that the goods might 
 have been received by the husband at his own house, and so have 
 come into the possession of the wife through her husband in a man- 
 ner that did not render her liable to be convicted, (v) 
 
 Where on an indictment against husband and wife for jointly receiv- 
 ing stolen fowls, it appeared that the fowls were found in the husband's 
 house, and the wife said she had bought part from people who came to 
 the house in his absence, and that her husband bought some at Shrews- 
 bury market on Wednesday ; and the husband afterwards said that he 
 was not out of the place where he resided on the Wednesday, and 
 had bought ' the fowls ' from the person who stole them ; so that the 
 evidence showed either a joint receiving by both or a separate receiv- 
 ing by each in the absence of the other, and the jury found both 
 guilty ; it was held that, assuming the receiving to have been joint, 
 the wife was entitled to be acquitted, as the offence was committed 
 in her husband's presence ; and assuming the receiving to have been 
 separate, the offence against both was not proved as laid, and that 
 the husband was rightly convicted, but the wife not. {iv) 
 
 Upon an indictment against husband and wife for jointly receiving 
 stolen goods, the jury found that the wife received them without the 
 control or knowledge of and apart from her husband, and that the 
 husband afterwards adopted his wife's receipt ; and it was held that, 
 upon this finding, the conviction of the husband could not be sup- 
 ported. The word ' adopted ' might mean that the husband passively 
 consented to what his wife had done without taking any active part 
 in the matter, and in that case he would not be guilty of receiving. 
 Or, it might mean that he did take such active part ; but this rigid 
 construction ought not to be put upon the word ' adopted.' (x) But 
 where the thief delivered the stolen property to the prisoner's wife in 
 his absence, and she then paid sixpence on account, but the amount 
 to be paid was not then fixed; and afterwards the prisoner and the 
 thief met, agreed on the price, and the prisoner paid the balance ; it 
 was held that the receipt was not complete till the price was fixed, 
 and the money paid, and consequently that the prisoner was rightly 
 convicted of receiving the stolen property, (y) 
 
 (v) R. v. Wardroper, Bell, C. C. 249. ceipt of stolen property may be convicted of 
 
 Martin, B., at the trial rightly treated the separate receipts. 
 
 indictment as joint and several. See 14 & (x) E. v. Dring, D. & B. 329. It was 
 
 15 Vict. c. 100, s. 14 ; but there was no doubted in this case, whether sec. 14 of the 
 
 evidence of a receipt by the wife in the ab- 14 & 15 Vict. c. 100, applied to successive 
 
 sence of her husband, so as to bring the case receipts of the whole property stolen ; but 
 
 within that clause. sec. 17 of the Statute of Frauds, 29 C. 2, 
 
 (w) R. v. Matthews, 1 Den. C. C. 596. c. 3, is, ' except the buyer shall accept part 
 
 There was nothing to show any activity on of the goods so sold, and actually receive the 
 
 thr part of the wit'.- at the time of the receipt, same,' and no one ever doubted that a receipt 
 
 See now the 24 & 25 Vict. c. 96, s. 94, of the whole was within this clause, 
 by which persons charged with a joint re- (y) U. r. Woodward, 1 L. & C. 122.
 
 chap, ji.] CommUUng Crimes. — Coverture. 151 
 
 Where a jury found a wife guilty of stealing from the person, and 
 her husband guilty of receiving the property stolen knowing ii to have 
 been stolen, and also found that the wife acted voluntarily and with- 
 out any restraint on the part of the husband, and that he received the 
 property from his wife knowing it to have been stolen by h< j r; it was 
 held that the husband was rightly convicted of feloniously receiving 
 the property from his wife, (z) 
 
 Where the wife is to be considered merely as the servant of the hus- 
 band, she will not be answerable for the consequences of his breach of 
 duty, however fatal, though she may be privy to his conduct. C. Squire 
 and his wife were indicted for the murder of a boy, who was bound as 
 a parish apprentice to the husband, and it appeared in evidence that 
 both prisoners had used the apprentice in a most cruel and barbarous 
 manner, and that the wife had occasionally committed the cruelties 
 in the absence of the husband. But the surgeon who opened the 
 body deposed that, in his judgment, the boy died from debility and 
 want of proper food and nourishment, and not from the wounds, &c, 
 which he had received. Lawrence, J., directed the jury, that as the 
 wife was the servant of the husband, it was not her duty to provide 
 the apprentice with sufficient food and nourishment, and that she 
 was not guilty of any breach of duty in neglecting to do so ; though, 
 if the husband had allowed her sufficient food for the apprentice, and 
 she had wilfully withholden it from him, then she would have been 
 guilty. But that here the fact was otherwise ; and therefore, though 
 in foro eonscientice the wife was equally guilty with the husband, yet 
 in point of law she could not be said to be guilty of not providing 
 the apprentice with sufficient food and nourishment, (a) 
 
 In inferior misdemeanors a wife may be indicted, together with her 
 husband ; (b) and she may be punished with him for keeping a bawdy 
 house; for this is an offence as to the government of the house in 
 which the wife has a principal share ; and also such an offence as may 
 generally be presumed to be managed by the intrigues of the sex. (c) 
 So a w T ife might be jointly convicted with her husband of an assault, 
 
 (2) R. v. M'Athey, 1 L. & C. 250. voluntarily, and not under coercion. In R. 
 
 (a) R. v. Squire "and his wife, Stafford v. Cruse, 8 C. & P. 541, the wife had taken 
 Lent Assizes, 1799. MS. a very active part. R. v. Williams, and R. 
 
 (b) See R. v. Martin, 8 A. & E. 481, v. Ingram, Salk. 384, were in arrest of 
 where husband and wife were convicted of judgment, and therefore the Court would 
 obtaining goods by false pretences, and presume, if necessary, that the wife had 
 the judgment reversed on another ground, acted voluntarily ; and R. v. Dixon was on 
 There is no doubt that in all misdemeanors demurrer, and the Court would, and it seems 
 a wife may be jointly convicted with her did, hold the indictment good, because it 
 husband, as she may be proved to have acted might be proved that the wife was not under 
 voluntarily ; but I find no authority that coercion. There is no authority, therefore, 
 the same rule as to coercion, which applies that the rule does not extend to misde- 
 to felonies, does not extend to misdemeanors, meanors, and the tendency of the authorities 
 On the contrary, R. v. Price, 8 C. & P. 19, certainly is that it does. C. S. G. See R. 
 and Anon., Matth. Dig. Cr. Law, 262, show v. Torpey, 12 Cox, C. C. 45, where it was so 
 that the rule applies to the misdemeanor of ruled. 
 
 uttering base coin ; and the reason given in (c) 1 Hawk. P. C. c. 1, s. 12. Williams's 
 R. v. Dixon, 10 Mod. 335, and R. v. Wil- case, 10 Mod. 63. Salk. 384. S. C, in 
 liams, Salk. 384, as to the keeping of gam- arrest of judgment. So also for keeping a 
 ing and bawdy houses, that the wife may gaming house. R. v, Dixon and wife, 10 
 probably have as great, nay, a greater share Mod. 335, on demurrer, where by the indict- 
 in the criminal management of the house, ment the husband and wife, ct ntcrque eorum 
 than the husband, tends to show, that, in were charged with the offence. See 1 Bur. 
 order to convict the wife she must be acting R. 600.
 
 152 Of Persons capable of [book i. 
 
 upon an indictment against both, for feloniously inflicting a bodily 
 injury dangerous to life, under 1 Vict. c. 88, s. 5. (d) But where the 
 husband and wife were indicted for a misdemeanor, in uttering coun- 
 terfeit coin, it was held that the same rule which applied to felonies 
 should apply to that case, (e) A prosecution for a conspiracy is not 
 maintainable against a husband and wife only; because they are 
 esteemed but as one person in law, and are presumed to have but 
 one will. (/) 
 
 In all cases where the wife offends alone without the company or 
 coercion of her husband, she is responsible for her offence as much as 
 any feme sole, {g) Thus she may be indicted alone for a riot ; (h) may 
 be convicted of selling gin against the injunctions of the 9 Geo. 2, 
 c. 23, (i) or for recusancy. (/) And she may be indicted for being a 
 common scold ; (k) for assault and battery ; (7) for forestalling ; (m) for 
 forcible entry ; (n) or for keeping a bawdy house, if her husband do not 
 live with her ; (o) and for trespass or slander, (p) And she may also be 
 indicted for receiving stolen goods of her own separate act without the 
 privity of her husband ; or if he, knowing thereof, leave the house and 
 forsake her company, she alone shall be guilty as accessory ; (q) and 
 though in a serious offence, such as that of sending threatening letters, 
 the husband be an agent in the transaction, yet, if he be so ignorantly, 
 by the artifice of the wife, she alone is punishable, (r) And generally 
 a feme covert shall answer as much as if she were sole for any offence 
 not capital against the common law or statute ; and if it be of such a 
 nature that it may be committed by her alone, without the concurrence 
 of the husband, she may be punished for it without the husband, by 
 way of indictment ; which being a proceeding grounded merely on the 
 breach of the law, the husband shall not be included in it for any 
 offence to which he is in no way privy, (s) 
 
 It is no excuse for the wife that she committed the offence by 
 her husband's order and procurement, if she committed it in his 
 absence ; at least it is not to be presumed in such case that she 
 acted by coercion. S. Morris was tried for uttering a forged order, 
 knowing it to be forged, and her husband for procuring her to commit 
 the offence; and it appeared that her husband ordered her to do it, 
 but that she uttered the instrument in his absence. Upon a case 
 
 (d) R. v. Cruse, 2 Moo. C. C. R. 53 ; {n) 1 Hale, 21. Co. Lit. 357. 1 Hawk. 
 S. C. 8 C. & P. 541. c - 64, s. 35. That is in respect of such ac- 
 
 (e) R. v. Price, 8 C. & P. 19. Mirehouse, tual violence as shall be done by her in per- 
 C. S., after consulting Bosanquet and Colt- son, but not in respect of what shall be done 
 man, JJ.; and vide Matth. Dig. Cr. Law, by others at her command, because such 
 262. Anon., S. P. per Bayley, J. command is void. 
 
 (/) 1 Hawk. P. C. c. 72, s. 8. 38 E. (o) 1 Hawk. P. C c 1, s. 13, n. 11, 
 
 3 3 where 1 Bac. Abr. 294, is cited. 
 
 (q) 4 Blac. Com. 29. See R. v. Robson, ()>) 1 Bac. Abr. Baron and Feme (G) 
 
 L. k C 93. as to a wife being guilty of lar- notes. 
 ceny of goods of which she is a bailee. (q) 22 Ass. 40. Dalt. c. 157. 
 
 (h) Dalt. 447. (') Hammond's case, 1 Leach, 447. 
 
 (/) Croft's case, Str. 1120. See R. v. (s) 1 Hawk. P. C. c. 1. s. 13. 1 Bac. 
 
 Ellen Taylor, 3 Burr. 1679. Abr. Baron and Feme (G), where it is said 
 
 (j) Hob. '96. Foster's case, 11 Co. 62. in the notes, that she cannot be indicted for 
 
 1 Sid. 410. Sav. 25. barratry, and Roll. Rep. 39 is cited. But qu. 
 
 (k) Foxlev's case, 6 Mod. 213, 239. and see 1 Hawk. P. C. c. 81, s. 6, and;>os*, 
 
 (Z) Salk. 3S4. Book 2, chap. 22, Barratry. 
 
 (to) Sid. 410. 2 Keb. 634. Qu. and see 
 Bac. Ab. Baron and Feme (G) notes.
 
 chap, ii.] Committing Crimes. — Coverture. 153 
 
 reserved, the judges held that the presumption of coercion at the time 
 of the uttering did not arise, as the husband was absent at that time ; 
 and that the wife was properly convicted of the uttering, and the hus- 
 band of the procuring, (t) In a previous case, where the prisoner was 
 indicted for forgery and uttering Bank of England notes, the principal 
 witness stated, that, in consequence of a conversation which he had 
 had some time before with the prisoner's husband, he went to the hus- 
 band's shop ; that the husband was not present, but that he saw the 
 prisoner, who beckoned him to go into an inner room ; that she fol- 
 lowed him into the room, and that he there told her what her husband 
 had said to him ; upon which they agreed about the business, and he 
 bought of her three two pound notes, at one pound four shillings each ; 
 that he paid her for the notes, and was to receive eight shillings in 
 change ; and that when he was putting the notes into his pocket-book, 
 and before he had received the change, the husband looked into the 
 room, but did not come in or interfere with the business further than 
 by saying, ' Get on with you.' After this the witness and the prisoner 
 returned into the shop where the husband was ; the prisoner gave him 
 the change, and both the prisoner and her husband cautioned him to 
 be careful. The counsel for the prisoner objected that she acted under 
 the coercion of her husband ; that the evidence would have been suffi- 
 cient to have convicted the husband, if both the husband and wife had 
 been upon their trial ; and that therefore the prisoner ought to be 
 acquitted, (u) But Thomson, B., said, ' I am very clear as to the law 
 on this point. The law, out of tenderness to the wife, if a felony be 
 committed in the presence of the husband, raises a presumption prima 
 facie, and prima facie only, as is clearly laid down by Lord Hale, that 
 it was done under his coercion : (v) but it is absolutely necessary that 
 the husband should in such case be actually present, and taking a part 
 in the transaction. Here it is entirely the act of the wife ; it is indeed 
 in consequence of a communication previously with the husband, that 
 the witness applies to the wife ; but she is ready to deal, and has on 
 her person the articles which she delivers to the witness. There was 
 a putting off before the husband came : and it was sufficient if before 
 that time she did that which was necessary to complete the crime. 
 The coercion must be at the time of the act done, and then the law 
 out of tenderness refers it prima facie to the coercion of the husband. 
 But when the crime has been completed in his absence, no subsequent 
 act of his (although it might possibly make him an accessory to the 
 felony of the wife) can be referred to what was done in his absence.' (w) 
 And it seems that the correct rule is, that if a felony be shown to have 
 been committed by the wife in the presence of the husband, the prima 
 facie presumption is that it was done by his coercion ; but such pre- 
 sumption may be rebutted by proof that the wife was the more active 
 party, or by showing an incapacity in the husband to coerce. Thus, if 
 the husband were a cripple, and confined to his bed, his presence then 
 
 (t) R. v. Morris, East. T. 1814. MS. Cox, C. C. 99 ; R. v. Torpey, 12 Cox, C. C. 
 
 Bayley, J., and Russ. & Ry. 270. 45. 
 
 (u) He referred to 2 East, P. C. c. 16, (w) R. v. Martha Hughes, coram Thorn- 
 
 s. 8, p. 559. 1 Hale, 46. Kel. 37. son, B., Lancaster Lent Assizes, 1813. MS. 
 
 (v) 1 Hale, 516. See R. v. Cohen, 11 2 Lewin, 229, S. C.
 
 154 Of Persons capable of [book i. 
 
 would not be sufficient to exonerate the wife, (x) Where, therefore, 
 in a case of arson, a husband and wife were tried together, and it 
 appeared that the husband, though present, was a cripple and bed- 
 ridden in the room ; it was held that the circumstances under which 
 the husband was, repelled the presumption of coercion, [y) 
 
 A feme covert is not guilty of felony in stealing her husband's goods 
 while they are living together; because a husband and wife are con- 
 sidered but as one person in law, and the husband, by endowing his 
 wife at the marriage with all his worldly goods, gives her a kind of 
 interest in them : for which cause it was at one time held that even a 
 stranger could not commit larceny in taking the goods of the hus- 
 band by the delivery of the wife, (z) 
 
 By the Married Women's Property Act, 1882 : (a) Sec. 12. 'Every 
 woman, whether married before or after this Act, shall have in her 
 own name against all persons whomsoever, including her husband (sub- 
 ject as regards her husband to the proviso hereinafter contained), the 
 same remedies and redress by way of criminal proceedings for the 
 protection and security of her own separate property as if such 
 property belonged to her as a feme sole. In any indictment or other 
 proceeding under this section, it shall be sufficient to allege such prop- 
 erty to be her property, and in any proceeding under this section a 
 husband or wife shall be competent to give evidence against each other, 
 any statute or rule of law to the contrary notwithstanding, provided 
 always, that no criminal proceeding shall be taken by any wife against 
 her husband by virtue of this Act while they are living together, as to 
 or concerning any property claimed by her, nor while they are living 
 apart, as to or concerning any act done by the husband while they 
 were living together, concerning property claimed by the wife unless 
 such property shall have been wrongfully taken by the husband when 
 leaving or deserting or about to leave or deserting his wife.' (b) 
 
 (x) Per Tindal, C. J., in R. v. Cruse, stigator or more active party, or that the 
 
 2 M. C. C. R. 53. husband, though present, was incapable of 
 
 (//) R. v. Henry & Elizabeth Pollard, coercing, as that he was a cripple, and bed- 
 
 Maidstone Sp. Ass. 1838, before Vaughan, J., ridden, or that the wife was the stronger of 
 
 who so held, after consulting Tindal, C. J. ; the two. C. S. G. In R. v. William & 
 
 cited in R. v. Cruse, 2 M. C. C. R. 53. Emma Jones, Gloucester Sum. Ass. 1841, 
 
 The following positions seem fairly de- Coltman, J., after attentively reading this 
 
 ducible from the cases upon this subject : — note, said that it was quite correct. MSS. 
 
 1st. There is no objection on demurrer to an C. C. G. 
 
 indictment, which charges husband and wife (z) 1 Hale, 514, where it is put thus : 'If 
 
 jointly with the commission of an offence ; she take or steal the goods of her husband 
 
 for the indictment is joint and several, and and deliver them to B., who knowing it, 
 
 both may be convicted, if it appear the wife carries them away, this seems no felony in 
 
 was not acting under the coercion of the bus- B. ; for they are taken quasi by the consent 
 
 band, or either of them. 2ndlv. There is no of her husband. Yet trespass lies against B. 
 
 objection, either in arrest of judgment, or on for such taking ; for it is a trespass ; but in 
 
 error, to the joint conviction of husband and favorem vita: it shall not be adjudged a fel- 
 
 wife of the same offence ; for she may have ony, and so I take the law to be, notwith- 
 
 been the instigator, and both guilty. 3rdly. standing the various opinions.' And he 
 
 Upon the trial of husband and wife, the cites Dalton, cap. 104, p. 268, 269, ex lectura 
 
 prima facie presumption is, that she acted Coolcc (new edit. c. 157, p. 504). And see 
 
 under his coercion, provided he wereactually 1 Hawk. P. C. c. 33, s. 32. 3 Inst. 110. 2 
 
 present at the time the felony was committed. East, P. C. 558. 
 
 If, therefore, nothing appear but that the (a) 45 & 46 Vict. c. 75. 
 
 felony was committed while they were both (b) A wife could not before the Act and 
 
 together, the jury ought to be directed to cannot now take criminal proceedings against 
 
 acquit the wife. 4thiy. This presumption her husband for defamatory libel. R. v. 
 
 is prima facie only, and may be rebutted, Lord Mayor of London, 18 Q. B. D. 772. 
 either by showing that the wife was the in-
 
 chap, ii.] Committing Crimes. — Coverture. 155 
 
 By sec. 16. 'A wife doing any act with respect to any property of 
 her husband which if done by the husband with respect to property of 
 the wife would make the husband liable to criminal proceedings by 
 the wife under this Act, shall in like manner be liable to criminal 
 proceedings by her husband.' 
 
 Before the 31 & 32 Vict. c. 116 (which see, vol. 2, Larceny), a wife 
 was not guilty of larceny if she stole money in her husband's custody, 
 the joint property of him and others, (c) 
 
 Where the prisoner was an apprentice to the prosecutor, and the 
 prosecutor's wife had continual custody of the key of the closet where 
 her husband's plate was usually locked up, and she had pawned some 
 articles of it in order to supply the prisoner with pocket-money, but 
 the articles she pawned were not those which the prisoner was charged 
 with stealing ; and the prisoner confessed that he took the articles men- 
 tioned in the indictment from the closet, and a pawnbroker proved that 
 he received them in pledge from the prisoner, but it did not appear by 
 what means the prisoner had gained access to the closet from which 
 they were taken ; the Court held, that the prosecutor's wife, having the 
 constant keeping of the key of the closet where the plate was usually 
 locked up, and it appearing that the prisoner could not have taken it 
 without her privity or consent, it may be presumed that he had received 
 it from her, and therefore he ought to be acquitted, (d) But if the wife 
 steal the goods of her husband, and deliver them to B., who knowing 
 it carries them away, B. being the adulterer of the wife, this, according 
 to a very good opinion, would be felony in B. ; for in such case no 
 consent of the husband can be presumed, (e) 
 
 Thus, where the prosecutor left his wife in the care of his house and 
 property, and during his absence the prisoner, who had lodged for some 
 time previously in the house, took a great many boxes, &c, from the 
 house, and left them at a house to which he had gone a day or two 
 before with the prosecutor's wife, passing her for his own, and where 
 he had hired lodgings ; and he soon afterwards brought her with him 
 to the lodgings, where they lived together till he was apprehended, 
 and the wife, who took a small basket with her, swore that there 
 was none of the property but what she had herself taken, or given to 
 the prisoner to take ; and the jury found that the prisoner stole the 
 property jointly with the wife ; it was held that this was larceny in 
 the prisoner; for though the wife consented, it must be considered 
 that it was done invito domino, (f) 
 
 So where the prisoner, who lodged at the house of the prosecutor, 
 went away with the prosecutor's wife to Birmingham, where they 
 lived together as man and wife for more than a year ; they took 
 with them from the prosecutor's house a box belonging to the pris- 
 oner, containing the wife's wearing apparel and a coffee-pot and two 
 candlesticks, the property of the prosecutor. The coffee-pot and candle- 
 sticks were used by them at Birmingham, and afterwards sold by the 
 wife, and the prisoner there pledged some articles of wearing apparel, 
 and applied the money to his own use. The jury were directed to 
 
 (c) E. v. Willis, R. & M. C. C. R. 375. (e) Dalton, cap. 104, pi. 268, 269 (new 
 
 Dalt. c. 157. edit. c. 157, p. 504). 
 
 (rf) Harrison's case, 1 Leach, 47. 2 East, ( f) R. v. Tolfree, R. & M. I '. C. R. 242, 
 
 P- G. 559. overruling 1.'. v. Clark, R. & M. 376 n. (a).
 
 156 Of Persons capable of [book i. 
 
 find the prisoner guilty, if they thought either that the prisoner, going 
 away with the prosecutor's wife for the purpose of an adulterous inter- 
 course, was engaged jointly with her in taking the goods, or that, not 
 being a party to the original taking, the prisoner, after arriving at 
 Birmingham, appropriated any part of the goods to his own use. The 
 jury having found the prisoner guilty, on the ground that there was a 
 joint taking by the prisoner and the wife, the judges were unanimously 
 of opinion that the conviction was right, (g) 
 
 So, where the prosecutor and his wife were on bad terms, and she 
 arranged with the prisoner to elope with him and live together as man 
 and wife, and the prisoner desired her to bring all the money she could, 
 and to get the money and boxes of clothes ready by a particular night, 
 when he would come for them and take her away ; and she put £17 
 into the boxes, which already contained her clothes, two watches, some 
 silk handkerchiefs, and about £4, and sat up after her husband had gone 
 to bed till the prisoner came, took him into the room where her hus- 
 band was asleep, and he took the boxes away, and, if her husband had 
 remained asleep, she would have gone off with the prisoner, but, as her 
 husband awoke, she was obliged to stay. It did not appear that any 
 adultery had been committed. The boxes were locked by the wife, and 
 were found in that state in the possession of the prisoner, and were 
 unlocked with keys produced by the wife. Coleridge, J., directed the 
 jury that, if the prisoner took any of the husband's property, there then 
 being an intention to commit adultery with the wife, he was guilty of 
 larceny ; and that, having told the wife to bring all the money that 
 she could, it was for them to consider whether he did not intend to 
 steal the property taken away, although he might not, at the time of 
 the taking, know exactly of what that property consisted, (h) 
 
 Where the prisoner lodged at the prosecutor's house, and knew 
 that he would have to go out very early in the morning, and en- 
 gaged a porter to be near the house at seven o'clock with his cart ; 
 the prisoner and the wife of the prosecutor were then jointly engaged 
 in the house in packing up the articles alleged to be stolen in 
 boxes, and when so packed the prisoner brought the boxes out, and 
 they were put in the cart and driven to the station, the prisoner, the 
 wife, and her three children accompanying them, and all went by the 
 train to Leeds. A fortnight afterwards the prisoner and the wife were 
 found living together at Leeds, in a house which she had taken in her 
 own name, and all the property taken was found there. The wife 
 was called as a witness for the prisoner, and swore that they neither 
 had committed adultery, nor gone away for that purpose. The jury 
 were told that, if they were satisfied that the prisoner and the wife, 
 when they took the property, went away for the purpose of having 
 adulterous intercourse, and had afterwards effected that purpose, they 
 ought to convict ; but that if they believed the wife, that they did 
 not go away with any such purpose, and had never committed 
 adultery, they ought to acquit. The jury found the prisoner guilty 
 of larceny, and the conviction was affirmed, (i) 
 
 (g) R. v. Thompson, 1 Den. C. C. R. M. C. 70. Where the prosecutor's wife, tak- 
 
 549. ing with her articles of her wearing apparel, 
 
 (h) R. v. Tollett, C. & M. 112. eloped with the prisoner, the clothes were 
 
 (i) R. v. Berry, Bell, C. C. 95 ; 28 L. J. found in a trunk belonging to the prisoner,
 
 chap, ii.] Committing Crimes. — Coverture. 157 
 
 On au indictment for larceny it appeared that the prisoner was a 
 servant of the prosecutor, and that he was seen to bring a box out of the 
 house of his master on the 28th of July, and that on the night of that 
 day the prisoner and the prosecutor's wife occupied the same bedroom 
 at Bath, and that in that room a police constable found them together, 
 and charged the prisoner with stealing spoons and a watch of the 
 prosecutor. He said, ' I 've not stolen anything ; what I have taken 
 away is with her consent ' (nodding to the wife). She said, ' Yes ; I told 
 him to get a fly, and take the boxes.' The constable pointed out a 
 box, and said, ' That is the prosecutor's.' She said, ' Yes, that is the 
 only thing which I have got of his.' The constable" took the watch 
 from the prisoner's person. The constable examined a box which the 
 prisoner admitted to be his, and found on the top several articles of 
 female apparel, and under these some silver spoons and sugar tongs 
 of the prosecutor. The prisoner said, ' I did not know the silver was 
 there ; the watch is Mrs. F.'s ; I got it from her.' The wife proved 
 that she ordered the prisoner to get a fly and take away the boxes, 
 and that the prisoner was not there when she was packing. He did 
 not know of her putting in the spoons or sugar tongs. It was objected 
 that the charge against the prisoner could not be maintained, as he 
 was acting under the control of his mistress, and that she could not 
 be legally charged with stealing from her husband; the jury were 
 directed that, if the prisoner and the wife went away with the inten- 
 tion of carrying on an adulterous intercourse, and if he, when so 
 going away, was concerned in taking away the property of the prose- 
 cutor, he was guilty ; and, on a case reserved upon the point so raised, 
 Erie, C. J., after argument for the prisoner, said, ' Upon these facts the 
 taking of the box animo adidterii was evidence of larceny. The pris- 
 oner took his master's property, and with it his master's wife, with the 
 intention of committing adultery. The conviction must therefore be 
 affirmed.' (j) 
 
 So, where a wife took thirty-five sovereigns and some clothes from 
 her husband's bedroom, and as she left the house said to the prisoner, 
 ' It 's all right, come on ; ' and he left in a few minutes after, and they 
 were traced to a public house, where they slept together, and when 
 taken into custody the prisoner had twenty-two sovereigns upon him : 
 the jury found him guilty of larceny, on the ground that he received 
 the sovereigns from the wife, knowing that she took them without the 
 authority of her husband ; and the conviction was held right ; for 
 when a wife becomes an adulteress, she thereby determines her quality 
 of wife, and her property in her husband's goods ceases; and in this 
 case the prisoner was the accomplice of the wife, assisted her, and 
 took the sovereigns, knowing that she had taken them without the 
 husband's consent, (k) 
 
 The prisoner, having lodged in the prosecutor's house about a year, 
 
 of which the wife had the key, which the little reliance can be placed on it. The facts 
 
 prisoner had given her, and she said she put above stated are taken from the different 
 
 them there ; the name of the wife was parts of the report. C. S. G. 
 
 changed, and a passage ticket taken out in (j) R. v. Mutters, 34 L. J. M. C. 54 ; L. 
 
 the joint name of Walker. Lefroy, C. J., & C. 511. 
 
 left the case to the jury, and the prisoner (k) R. v. Featherstone, Dears. C. C. R. 
 
 was convicted. R. v. Glassie, 7 Cox, 1. 369; 23 L. J. M. C. 127. 
 
 This case is extremely ill -reported, and very
 
 158 Of Persons capable of [book i. 
 
 left, but there was no evidence as to the time or manner of his leav- 
 ing. The next day the prosecutor's wife left, with only a small bundle 
 under her arm. The prisoner was apprehended on board a vessel bound 
 to Quebec, in company with the wife, who was passing under the name 
 of Mrs. Deer, and the prisoner had tickets for Quebec in the names of 
 Mr. and Mrs. Deer. A great quantity of the prosecutor's property, 
 very much more than could have been comprised in the wife's bundle, 
 and not confined to the wife's clothes, was found in the prisoner's cabin 
 and on his person, on the 10th of April, and it had been missed on 
 the evening of the 9th of that month. There was no other evidence 
 who had taken the articles from the house. The jury found the pris- 
 oner guilty of receiving, knowing the goods to have been stolen ; and 
 it was held that there was ' some evidence to support the conviction.' (I) 
 
 It was held before the Married Women's Property Act that where 
 adultery was neither committed nor intended, a person was not guilty 
 of larceny in aiding a wife in taking away her husband's goods, (m) 
 Now, however, by the combined effect of ss. 12 and 16 of that Act, (n) a 
 wife can be convicted of taking her husband's goods when about to 
 leave or desert him, and her accomplice would therefore be equally 
 guilty. 
 
 Where a wife took her husband's goods from a place within the 
 jurisdiction of the Central Criminal Court, and was found committing 
 adultery with the prisoner at Liverpool, the husband's goods being 
 then in the prisoner's possession, but there was no evidence that the 
 goods had been under the prisoner's control at any place within the 
 jurisdiction of the Central Criminal Court, it was held that the pris- 
 oner could not be indicted in that court for larceny, (o) 
 
 Where the prisoner was charged with receiving stolen goods, and it 
 appeared that they had been brought to him by the prosecutor's wife, 
 who had committed adultery with him, it was held before the Married 
 Women's Property Act, 1882, that he could not be convicted because 
 a wife could not steal her husband's goods, (p) It would seem, how- 
 ever, that since that Act he might be convicted in such a case, (q) 
 
 A feme covert shall not be deemed accessory to a felony for receiv- 
 ing the husband who has been guilty of it, as her husband shall be for 
 receiving her ; nor shall be a principal in receiving her husband when 
 his offence is treason ; for she is sub potestate viri, and bound to receive 
 
 (I) R. n. Deer, L. & C. 240 ; 32 L. J. M. not of receiving, and therefore this decision 
 
 C. 33. The case was not argued, and no is wrong. C. S. G. 
 
 grounds are given for the decision. As the (m) R. v. Avery, Bell, C. C. 150, 20 L. J. 
 
 only possible inferences from the facts are M. C. 85. 1 
 
 either that the prisoner took the goods, or (n) Ante, pp. 154, 155. 
 
 joined with the wife in taking them, or that (o) R. v. Prince, 11 Cox, C. C. 145. 
 
 the wife took them or part of them, and (p) R. ». Kenny, 2 Q. B. D. 307. 
 
 afterwards delivered them to the prisoner, it (q) 45 & 46 Vict. c. 75, ss. 12 and 16, 
 
 is clear that lie was guilty of stealing and ante. 
 
 American Note. 
 
 1 In R. v. Avery it is clear that the thief adultery, if a man takes the goods of the 
 
 knew he was taking the goods without the husband, knowing that he does so without 
 
 consent of the husband, but it was held there his consent, he is guilty of larceny. P. v. 
 
 was no larceny. In New York, however, it Cole, 43 N. Y. 508, 511. 
 was held that apart from any question of
 
 ciiap. ii.] CommiUing Crimes. — Coverture. 159 
 
 him. (r) Neither is she affected by receiving, jointly with her hus- 
 band, any other offender, (s) 
 
 It is no ground for dismissing an indictment for burglary or larceny 
 as to the wife, that she is charged with her husband and described as 
 his wife ; for the indictment is joint and several according as the facts 
 may appear ; and on such an indictment the wife may be convicted, 
 and the husband acquitted, (t) 
 
 In burglary or larceny, if a man and woman are indicted, and the 
 woman pretends to be the man's wife, but is not so described in the in- 
 dictment, the onus of proving that she is his wife is upon her. Thus 
 where Thomas Wharton and Jane Jones were indicted for burglary, 
 and the woman pleaded that she was married to Wharton, and would 
 not plead to the name of Jones, the grand jury who found the bill was 
 sent for, and in their presence, and with their consent, the Court inserted 
 the name Jane Wharton, otherwise Jones, not calling her the wife of 
 Thomas Wharton, but giving her the addition of' spinster, upon which 
 she pleaded ; and the Court told her that if she could prove that she 
 was married to Wharton before the burglary, she should have the advan- 
 tage of it : but on the trial she could not, and was found guilty, and judg- 
 ment given upon her. (u) If a woman be indicted as a single woman, 
 and pleads to the felony, that is prima facie evidence that she is not a 
 feme covert, but is not conclusive of the fact, (v) And in such a case 
 such evidence must be given as to satisfy the jury that the prisoners 
 are in fact husband and wife, in the same way as to convince them of 
 any other fact, (w) But cohabitation and reputation will be sufficient 
 evidence upon such point. William and Mary Atkinson were indicted 
 for disposing of forged country bank notes ; and it appeared that the 
 man disposed of them in the presence of the woman, at a public-house, 
 to which they went together to meet the person to whom they were dis- 
 posed of ; that the man went thither by appointment, and the woman 
 had a bundle of the same notes in her pocket. There was evidence, 
 on the part of the prosecution, that they had lived and passed for man 
 and wife for some months ; upon which it was put to Gibbs, C. B., 
 whether the woman was not entitled to an acquittal, and he thought 
 she was ; and the counsel for the prosecution at once acquiesced, (x) 
 Where, upon an indictment against a woman for harbouring a mur- 
 derer, knowing him to have committed the murder, it was probable 
 that a marriage had taken place between the parties, in Ireland, at a 
 place where the registers were very imperfectly kept, and the parties 
 had for many years considered each other as man and wife, no evidence 
 was offered for the prosecution, with the sanction of the Court, (y) 
 
 (r) 1 Hale, 47. 1 Hawk. P. C, c. 1, wrong addition on arraignment, as by plead- 
 
 s. 10. ingto the felony she answers to the name by 
 
 (s) 1 Hale, 48, 621. But if the wife which she is indicted. C. S. G. 
 
 alone, the husband being ignorant, do know- (x) R. v. Atkinson, 0. B. Jan. Sess. 
 
 inglv receive B., a felon, the wife is acces- 1814. MS. Barley, J. 
 
 sory and not the husband. 1 Hale, 621. (?/) R. v. Good, 1 C. & K. 185. Alder- 
 
 (/) 1 Hale, 46. son, B., observed, 'If the prisoner went 
 
 (it) R. v. Jones, Kel. 37. through the ceremony of marriage, and it 
 
 (v) Quinn's case, 1 Lewin, 1. Reg. v. should have turned out that there was some 
 
 Woodward, 8 C. & P. 561. Patteson, J. irregularity in the marriage, nevertheless it' 
 
 (iv) R. v. Hassall, 2 C. & P. 434. Gar- it appeared that she had acted under the 
 
 row, B. Quaere, whether the proper course supposition that she was the wife of the 
 
 for a woman so indicted is not to plead the murderer, and according to the duty which
 
 160 Of Persons capable of Committing Crimes. [book i. 
 
 Where, however, the indictment states the woman to he the wife of 
 the person with whom she is jointly indicted, no evidence is necessary 
 to show that she is the wife, (z) 
 
 Ignorance. 1 — IV. Upon the plea or excuse of ignorance, it may be 
 shortly observed, that it will apply only to ignorance or mistake of fact, 
 and not to any error in point of law. For ignorance of the municipal law 
 of the kingdom is not allowed to excuse any one that is of the age of 
 discretion and compos mentis from its penalties when broken, (a) And 
 it is no defence for a foreigner charged with a crime committed in 
 England, that he did not know he was doing wrong, the act not being 
 an offence in his own country, (b) Where, therefore, two Frenchmen 
 were committed on a charge of murder in a duel, and alleged that they 
 were ignorant of the law of England, and believed that acting as 
 seconds in a fair duel was not punishable here, as it was not punish- 
 able in France, and that this was a fair duel, it was held that they 
 were precisely in the same position as if they were native subjects of 
 England, and the Court refused to bail them, (c) And as a ship, 
 public or private, on the high seas, is, for the purpose of jurisdiction 
 over crimes committed therein, a part of the territory to which the 
 ship belongs, a person voluntarily coming on board an English ship, 
 is as much amenable to the criminal law of England as if he came 
 voluntarily into an English county, and ignorance of the law is no 
 more an excuse in the one case than in the other, (d) But in some 
 instances an ignorance or mistake of the fact will excuse ; which 
 appears to have been ruled in cases of misfortune and casualty ; as if 
 a man, intending to kill a thief or housebreaker in his own house, 
 by mistake kills one of Ins own family, this will not be a criminal 
 action, (e) 
 
 It is a principle of natural justice and of our law, that actus non 
 facit reum, nisi mens sit rea. This maxim was much discussed in the 
 recent case of K. v. Prince, 44 Li J. M. C. 122, noticed post, in this vol. 
 
 As to statutes binding aliens, see the Year Book, 13 Ed. 4, p. 9, 
 pi. 5. 
 
 she considered to be cast upon her, the (z) R. v. Knight, 1 C. & P. 116. J. A. 
 
 Court would have felt it right to have in- Park, J. 
 
 flicted a very slight punishment upon her.' (a) 1 Hale, 42. 4 Blac. Com. 27, igno- 
 
 As in every case, except bigamy and crimi- rentia juris, quod quisque tenetur scire, nemi- 
 
 nal conversation, living together as man and nem excusat, is a maxim as well of our own 
 
 wife is sufficient evidence of a marriage, law as it was of the Roman. Plowd. 343. 
 
 Morris v. Miller, 1 Bl. R. 632; (Woodgate Ff. 22, 6, 9. 
 
 v. Potts, 2 C. & K. 457), there seems to have (b) R. v. Esop, 7 C. & P. 456. Bosan- 
 
 been abundant evidence in this case of a quet and Vaughan, JJ. 
 
 marriage between the parties ; but, assuming (c) Barronet's case, 1 E. & B. 1. 1 
 
 that not to be so, it is deserving of consid- Dears. C. C. R. 51. This is in accordance 
 
 eration whether, if a woman received and with the Mosaic Law : ' Ye shall have one 
 
 comforted a felon, honestly believing him to manner of law as well for the stranger as for 
 
 be her husband, that would not entitle her one of your own country.' (Levit. xxiv. 22 ; 
 
 to an acquittal, upon the ground that no Exod. xii 49.) 
 
 guilty intention could exist under such cir- (d) R. v. Sattler, R. t\ Lopez, D. & B. 
 
 cumstances, but, on the contrary, she was C. C. 525. 
 
 doing that which she honestly believed to (e) Levett's case, Cro. Car. 538. See 
 
 be her duty to do. C. S. G. this case post. 4 Blac. Com. 27. 1 Hale, 
 
 42, 43. 
 
 American Note. 
 1 In America it has been laid down that 148 ; Tardiff v. S., 23 Texas, 169 ; Winehart 
 the essence of an offence is the intention to v. S., 6 Ind. 30. 
 commit it. See Duncan v. S., 6 Humph.
 
 CHAPTER THE THIRD. 
 
 OF PRINCIPALS AND ACCESSORIES. 
 
 Wheke two or more are to be brought to justice for one and the 
 same felony, they are considered in the light either — I. Of principals 
 in the first degree. II. Principals in the second degree. III. Acces- 
 sories before the fact ; or IV. Accessories after the fact. And in 
 either of these characters they will be felons in consideration of law ; 
 for he who takes any part in a felony, whether it be a felony at com- 
 mon law or by statute, is in construction of law a felon, according to 
 the share which he takes in the crime, (a) 
 
 Principals in the first degree. — I. Principals in the first degree are 
 those who have actually and with their own hands committed the fact ; 
 and it does not appear necessary to say anything in this place by way 
 of explanation of the nature of their guilt, which will be detailed in 
 treating of the different offences in the course of the work. 
 
 Principals in the second degree. 1 — II. Principals in the second 
 degree are those who were present, aiding and abetting at the com- 
 mission of the fact. They are generally termed aiders and abettors, 
 and sometimes accomplices : but the latter appellation will not serve 
 as a term of definition, as it includes all the participes criminis, 
 whether they are considered in strict legal propriety as principals in 
 the first or second degree, or merely as accessories before or after the 
 fact, (b) The distinction between principals in the first, and princi- 
 pals in the second degree ; or, to speak more properly, the course and 
 order of proceeding against offenders founded upon that distinction, 
 appears to have been unknown to the most ancient writers on our 
 law, who considered the persons present aiding and abetting in no 
 other light than as accessories at the fact, (c) But as such accessories 
 they were not liable to be brought to trial till the principal offenders 
 should be convicted or outlawed ; a rule productive of much mischief, 
 as the course of justice was frequently arrested by the death or escape 
 of the principal, or from his remaining unknown or concealed. And 
 with a view to obviate this mischief the judges by degrees adopted a 
 different rule : and at length it became settled law that all those 
 
 (a) Fost. 417. (c) Fost. 347. 
 
 (b) Fost. 341. 
 
 American Note. 
 
 1 As to aiding and abetting in America, 6 Pick. 496 ; Grier v. S., 13 Mo. 382. As 
 
 see C. v. Chapman, 11 Cush. 422 ; S. v. Mc- to employing agent, see P. v. Adams, 3 
 
 Gregor, 41 N. H. 407; S. v. Wilson, 30 Denio, 190; 1 Comst. 173; S. v. Colman, 
 
 Conn. 500 ; S. v. Fley, 2 Brevard, 338 ; 5 Porter, 32. 
 M'Govan v. S., 9 Yerg. 184 ; C. v. Knapp, 
 
 vol. i. — 11
 
 162 Of Principals and Accessories. [book i. 
 
 who are present, aiding and abetting, when a felony is committed, are 
 principals in the second degree, (d) 
 
 In order to render a person a principal in the second degree, or 
 an aider and abettor, he must be present aiding and abetting at the 
 fact, or ready to afford assistance if necessary ; but the presence need 
 not be a strict actual immediate presence, such a presence as would 
 make him an eye or ear witness of what passes, but may be a con- 
 structive presence. So that if several persons set out together, or in 
 small parties, upon one common design, be it murder or other felony, 
 or for any other purpose unlawful in itself, and each takes the part 
 assigned him ; some to commit the fact, others to watch at proper 
 distances and stations to prevent a surprise, or to favour, if need be, 
 the escape of those who are more immediately engaged ; they are all, 
 provided the fact be committed, in the eye of the law present at it ; 
 for it was made a common cause with them ; each man operated in his 
 station at one and the same instant, towards the same common end, 
 and the part each man took tended to give countenance, encourage- 
 ment and protection to the whole gang, and to insure the success of 
 their common enterprise, (e) But there must be some participation ; 
 therefore if a special verdict against a man as a principal does not 
 show that he did the act, or was present when it was done, or did 
 some act at the time in aid which shows that he was present, aiding 
 and assisting, or that he was of the same party, in the same pursuit, 
 and under the same expectation of mutual defence and support with 
 those who did the fact, the prisoner cannot be convicted. (/) So, if 
 several are out for the purpose of committing a felony, and upon alarm 
 and pursuit run different ways, and one of them maim a pursuer to 
 avoid being taken, the others are not to be considered as principals in 
 that maiming, (g) And it is not sufficient to make a man a principal 
 in uttering a forged note, that he came with the utterer to the town 
 where it was uttered, went out with him from the inn where they put 
 up a little before he uttered it, joined him again in the street a short 
 time after the uttering, and at a little distance from the place of 
 uttering, and ran away when the utterer was apprehended, (h) The 
 general rule applies to offences by statute as well as at common law, 
 viz., that all present at the time of committing an offence are princi- 
 pals, although one only acts, if they are confederates, and engaged in a 
 common design, of which the offence is part, (i) And it has been 
 considered, in a case where three persons were charged with uttering 
 a forged note, that other acts done by all of them jointly, or by any 
 of them separately, shortly before the offence, may be given in evi- 
 dence to show the confederacy and common purpose, although such 
 
 (d) Coal-heaver's case. 1 Leach, 66. (/) R. v. Borthwiek, Dougl. 207. 
 
 And see Fost. 428, and R. v. Towle, Russ. (g) R. v. White & Richardson, R. & R. 
 
 & Rv. 314. This law was by no means set- 99. 
 
 tied "till after the time of Ed". 3 ; and so late (h) R. v. Davis & Hall, East. T. 1806. 
 
 as the first of Queen Mary a chief justice of MS. Bayley, J.; and R. & R. 113. See per 
 
 England strongly doubted of it, though in- Graham, B., in the case of Brady and others, 
 
 deed it had been sufficiently settled before 0. B. June, 1813, 1 Stark. Crim. Plead. 80, 
 
 that time. in the note. 
 
 (c) Fost. 350, 2 Hawk. P. C. c. 29, ss. 7, (0 P. v. Tattersal, Sedgewick & Hodg- 
 
 8; see R. v. Howell, 9 C. & P. 437 ; Little- son, East. T. 1801. MS. Bayley, J. 
 dale, J. ; R. v. Vanderstein, 10 Cox, C. C. 
 (Irish) 177.
 
 chap, in.] Of Principals and Accessories. 163 
 
 acts constitute distinct felonies. (/) And also that what was found 
 upon each may be proved against each to make out such confederacy, 
 although it were not found until some interval after the commission 
 ■of the offence, (k) 
 
 Kelly and McCarthy were indicted for stealing oats, and it appeared 
 that Kelly was hired by the prosecutor to draw oats in sacks from 
 a vessel to the prosecutor's warehouse, and McCarthy was employed 
 by the prosecutor to load the sacks out of the vessel into the trams 
 on which they were carried. The trams belonged to Kelly. Whilst 
 one load was being conveyed to the warehouse, Kelly said to McCarthy, 
 * It 's all right,' and shortly afterwards McCarthy emptied some oats 
 out of two sacks which were on a tram close to the vessel, into a 
 nosebag which he then placed under the tram. Kelly, at this time, 
 was absent with a load ; but returned in a few minutes to the vessel 
 with an empty tram, took the nosebag from under the tram, where 
 McCarthy had placed it, and put it on the tram, and drove off with 
 it, McCarthy being, at the time Kelly took the nosebag from under 
 the tram, on the vessel, which lay close to the tram, and within 
 three or four yards of Kelly. It was submitted that Kelly was 
 entitled to be acquitted, as he was not present at the time when the 
 oats were stolen. Maule, J. : ' I think the evidence shows that this 
 was all one transaction, in which both concurred ; and I think both 
 having concurred, and both being present at some parts of the trans- 
 action, both may be convicted.' (/) 
 
 Upon an indictment for larceny against Hornby and W. G., it ap- 
 peared that W. G. was the foreman of the prosecutor, a canvas manu- 
 facturer, but had no authority to sell any yarn. On one occasion 
 Hornby sent his servants to the warehouse of the prosecutor to bring 
 away yarn, and W. G. delivered with the yarn an invoice made out in 
 the name of the prosecutor. Subsequently, Hornby sent two of his 
 men to the warehouse of the prosecutor, and, on arriving, they found 
 Hornby and W. G. there. Some yarn was pointed out as the yarn 
 which they were to take to Hornby's premises : and they thereupon, in 
 the presence of Hornby and W G., carried away the yarn in question. 
 When Hornby was charged he produced the invoice which W. G. gave 
 him on the first occasion, and stated that, except on that occasion, 
 he had had no dealings with him. It was submitted that Hornby 
 was only guilty of receiving the yarn, knowing it to have been stolen , 
 but Coltman, J., held that if Hornby knew that in the transaction in 
 question W. G. was, in fact, committing a felony, he, as well as W. G., 
 was guilty of the same felony ; and, therefore, the question for the 
 jury was whether, at the time of the pretended sale by W. G., Hornby 
 knew that W. G. was exceeding his authority and defrauding his 
 master, (m) 
 
 Going towards the place where a felony is to be committed in order 
 to assist in carrying off the property, and assisting accordingly, will 
 not make the party a principal if he was at such a distance, at the 
 time of the felonious taking, as not to be able to assist in it. The 
 
 (j) Id. ibid. J., refused to reserve the point, and the 
 
 (Jc) Id. ibid. prisoners were convicted. 
 
 <0 R. v. Kelly, 2 C. & K. 379. Maule, ' (m) R. v. Hornby, 1 C. & K. 305.
 
 164 Of Principals and Accessories. [book i. 
 
 prisoner and J. S. went to steal two horses ; J S. left the prisoner 
 half a mile from the place in which the horses were, and brought 
 the horses to him, and both rode away with them. Upon a case 
 reserved, the judges thought the prisoner an accessory only, not a 
 principal, because he was not present at the original taking, (n) So, 
 where a servant let a person into his master's house, in order that he 
 might steal his master's money, and he continued in the house till the 
 robbery, but the servant left the house before the robbery was committed, 
 it was held that the servant was an accessory before the fact, (o) So, 
 where on an indictment for stealing in a dwelling-house, it was proved 
 that a servant had unlocked the door of the house, in order that 
 another person might get in and steal the property, which he did about 
 twenty minutes after the servant had left the house, it was contended 
 that, as it was clear that if the servant had been indicted for house- 
 breaking and stealing he might have been convicted, (p) that showed 
 that he was guilty of stealing the money, for that could not depend 
 upon the form of the indictment. But it was held that the servant 
 was only an accessory before the fact to the offence charged in this 
 indictment, (q) So, where three prisoners were jointly indicted for 
 maliciously wounding with intent to maim, &c, and one of them did 
 not come up and take any part until the wound had been inflicted 
 by the others, it was held that the latter only could be convicted, 
 though the former kicked the prosecutor several times after he came 
 up. (r) So, if two prisoners go to a house, intending to commit a 
 theft in it, and one enters first and is apprehended, and then the 
 other enters and commits the theft, the former is only an accessory 
 before the fact, (s) 
 
 But where a man committed a larceny, in a room of a house, in which 
 room he lodged, and threw a bundle containing the stolen property out 
 of the window to an accomplice who was waiting to receive it, the judges 
 came to a different conclusion. The accomplice was indicted and con- 
 victed as a receiver ; and the learned judge before whom he was tried 
 was of opinion, that as the thief stole the property in his own room, 
 and required no assistance to commit the felony, the conviction of the 
 accomplice as a receiver might have been supported, if the jury had 
 found that the thief had brought the goods out of the house, and 
 delivered them to the accomplice ; but as the jury had found that the 
 thief threw the things out of the window, and that the accomplice was 
 in waiting to receive them, he thought the point fit for consideration. 
 And the judges were of opinion that the accomplice in this case was a 
 principal, and that the conviction of him as a receiver was wrong, (t) 
 
 (n) R. v. Kelly, MS. Bayley, J., and may possibly be supported on the ground 
 
 R. & R. 421. that the servant had left the house twenty 
 
 (o) R. v. Tuckwell, C. & M.215. — Cole- minutes before the thief came. 1 
 ridge, J. It is not stated how long before (r) R. v. M'Shane, C. & M. 212. Tin- 
 
 the theft the servant left. dal, C. J. 
 
 (/>) R. v. Jordan, 7 C. & P. 432. (s) R. v. Johnson, C. & M. 218. Maule, 
 
 (q) R. v. Jefferies & Brvant, Gloucester J., and Rolfe, B. 
 Spr. Ass. 1848. Cresswell and Patteson, JJ. (t) R. v. Owen, R. & Mood. C. C. R. 96. 
 
 MSS. C. S. G. 3 Cox, C. C. 85. This case R. v. Coggins, 12 Cox, C. C. 517. 
 
 American Note. 
 1 See Bishop, i. s. 650, note (1), and s. 676 (3).
 
 chap, in.] Of Principals and Accessories. 165 
 
 So, where on an indictment against George P. for stealing, and 
 Henry P. for receiving pork, it appeared that the prisoners were seen 
 conversing together near the prosecutor's premises, and went together 
 to his warehouse, and George went into the warehouse and took the 
 pork out of a tub, and brought it out of the warehouse and gave it to 
 Henry, who had remained on the outside, and who was not in a posi- 
 tion to see what George did in the warehouse, but was sufficiently 
 near to have rendered him aid in case he had been taken into custody ; 
 that is to say, the evidence was sufficient to have convicted him as a 
 principal in the second degree ; and the jury having found Henry 
 guilty, upon a case reserved upon the question whether a person who 
 was a principal in the second degree could, under the above circum- 
 stances, be convicted as a receiver of the goods, stolen, the judges were 
 unanimously of opinion that he could not ; and, therefore, the convic- 
 tion of Henry was wrong, (u) 
 
 But in order to make a person who is present when a felony 
 is committed a principal in the second degree, there must be a com- 
 munity of purpose with the party actually committing the felony, at 
 the time when the felony is committed. One count charged Hilton 
 and M'Evin with stealing from the person ; another charged them 
 with feloniously receiving the stolen property. Hilton was walking 
 by the side of the prosecutrix, and M'Evin was seen just previously 
 following behind her. The prosecutrix felt a tug at her pocket, found 
 her purse was gone, and, on looking round saw Hilton behind her, 
 walking with M'Evin in the opposite direction, and saw her hand 
 something to M'Evin. The jury were directed that, if they did not 
 think, from the evidence, M'Evin was participating in the actual theft, 
 it was open to them on these facts to find him guilty of receiving. 
 The jury found Hilton guilty of stealing and M'Evin guilty of receiv- 
 ing ; and it was held that the direction was right, as to make M'Evin 
 a principal in the second degree there must have been a community of 
 purpose with Hilton in the actual stealing, (v) 
 
 When an offence is committed through the medium of an innocent 
 agent, the employer, though absent when the act is done, is answerable 
 as a principal. Thus, if a child under years of discretion, a madman, 
 or any other person of defective mind, is incited to commit a murder 
 or other crime, the incitor is the principal ex necessitate, though he 
 were absent when the thing was done, (w) Where, therefore, on an 
 indictment for larceny it appeared that the prisoner had induced a 
 child of the age of nine years to take money from his father's till 
 and give it him, Wightman, J., left it to the jury to say whether the 
 child was an innocent agent, that is, whether he knew that he was 
 doing wrong or was acting altogether unconsciously of guilt and at 
 the dictation of the prisoner, (x) And if a man give another a forged 
 note that the other may utter it, if the latter be ignorant of the note 
 being forged, the uttering by the latter is the uttering of the former, 
 
 (u) R. v. Perkins, 2 Den.C. C. 459. This committed were to receive them again, there 
 
 case must not be taken to decide that a prin- can be no doubt that he might be convicted 
 
 cipal cannot, under any circumstances, be a as a receiver. C. S. G. 
 receiver, as the marginal note would seem (v) R. v. Hilton, 1 Bell, C. C. 20. 
 
 to indicate. If a principal were to deliver (w) Post. 349. Kel. 52. Post, title 
 
 the goods to another, and afterwards at a Muni it. 
 distance from the place where the felony was (x) R. v. Man ley, 1 Cox, C. C. 104.
 
 166 Of Principals and Accessories. [book i. 
 
 though the former were absent at the time of the actual uttering. (?/) 
 But if the person who received the note knew that it was forged, the 
 person who gave it would not be punishable as a principal. (2) For 
 where a person, having incited another to lay poison, is absent at the 
 time of laying it, he is an accessory only, though he prepared the 
 poison, if the person laying it is amenable as a principal ; but is pun- 
 ishable as a principal if the person laying the poison is not so 
 amenable, (a) 
 
 Where a prisoner went to a die-sinker and ordered four dies of 
 the size of a shilling to be made, stating them to be for two whist 
 clubs. One die was to be exactly like the obverse side of a shilling, 
 another with an inscription, a third exactly like the reverse side of a 
 shilling, and the fourth with an inscription ; and before making them, 
 the diesinker communicated with the officers of the Mint, who directed 
 him to execute the prisoner's order, which he did by making the first 
 and third dies, and from these counterfeit shillings could be coined ; it 
 was held that the prisoner was the principal felon, as the die-sinker 
 was an innocent agent, (b) So, where the prisoners had applied to an 
 artist to engrave a copy of the coupons of the Netherlands Bank, and 
 the artist suspecting that there was an intention to defraud, com- 
 municated with the Dutch consul, and under his direction, employed 
 persons to engrave the plate in pursuance of the orders given him ; 
 it was held that the authority given was better than the one held 
 sufficient in the preceding case, and that the artist was an innocent 
 agent, (c) 
 
 Where poison is laid for a man, and all who were present and 
 concurred in laying it are absent at the time it is taken by the party 
 killed by taking it, all are principals ; otherwise all would escape 
 punishment, (d) 
 
 Bull in London, and Schmidt on the Continent, were engaged in 
 planning the forgery of a plate, as appeared by letters which had 
 passed between them. The order for the plate was, however, given 
 by Bull to an innocent agent before Schmidt came to England. On 
 his arrival he and Bull went to the manufacturer, and the plate 
 was given to them. It was contended that Bull was the principal, 
 and that Schmidt was only an accessory before the fact. That it 
 was precisely the same as if Bull had engraved the plate, and, if 
 so, Schmidt was only an accessory. Tindal, C. J. : ' That reasoning 
 would be good if the actual maker had been a guilty party, because he 
 would stand in a different position to those who had counselled him 
 to the commission of the crime. But it altogether fails where the 
 
 (y) R. v. Palmer & Hudson, 1 New Rep. (b) R. v. Bannen, 2 M. C. C. 309. 1 C. 
 
 96. Post, Vol. II.. title Forgery.' & K. 295. 
 
 (;) R. v. Soares, R. & R. 25. (c) R. v. Valler, 1 Cox, C. C. 84. Gur- 
 
 (a) Fost. 349. nev, B. , and Wightman, J. 
 
 "(d) Fost. 349'. Kel. 52. 4 Co. 44 b. 
 
 American Note. 
 
 1 So in America it has been held that a 774 ; C. v. Foster, 114 Mass. 311; 19 Am. 
 
 man who employs an innocent agent to write R. 353; McGuire v. Tobey, 62 Mich. 252, 
 
 what is a forgery, is guilty of forgery. 4 Am. St. R. 848. 
 Gregory v. S. 26, Ohio St. 510, 20 Am. R.
 
 chap, in.] Of Principals and Accessories. 167 
 
 immediate agent is an innocent one. Then, those who have plotted 
 and arranged that he should do the particular act are themselves prin- 
 cipals. Suppose the prisoners had been both abroad, and that, having 
 planned the forgery, one of them had given the order for the plate by 
 letter, can it be doubted that they would be indictable as principals ; 
 and can it make any difference that one of them is in this country ? 
 It seems to me, then, that the circumstance of the immediate agent in 
 this forgery being an innocent person renders the rule of law as to 
 principal and accessory inapplicable.' Alderson B. : 'If a person does 
 an act of this kind, with a guilty intent, he is not the agent of any 
 one. If he does it innocently, he is the agent of some person or per- 
 sons ; and if two have agreed to employ him, he is the agent of both. 
 In this case, therefore, it is a question for the jury whether the pris- 
 oners were jointly acting in procuring this plate to be made. If they 
 were, then the engraver acts on behalf of both. It makes no differ- 
 ence whether they were in England or elsewhere ; when they have 
 once agreed to do the thing, the act of one is the act of all, although 
 the rest be absent at the time.' (c) 
 
 It has been held, that to aid and assist a person to the jurors un- 
 known to obtain money by the practice of ring-dropping is felony, if 
 the jury find that the prisoner was confederating with the person 
 unknown to obtain the money by means of this practice. (/) And 
 if several act in concert to steal a man's goods, and he is induced by 
 fraud to trust one of them in the presence of the others with the 
 possession of the goods, and then another of the party entice the 
 owner away, in order that the party who has obtained such possession 
 may carry the goods off, all will be guilty of felony, the receipt by 
 one, under such circumstances, being a felonious taking by all. (g) So, 
 where a prisoner asked a servant, who had no authority to sell, the 
 price of a mare, and desired him to trot her out, and then went to two 
 men, and having talked to them, went away, and the two men then 
 came up and induced the servant to exchange the mare for a horse 
 of little value, it was held that if the prisoner was in league with 
 the two men to obtain the mare by fraud and steal her he was a 
 principal. Qi) 
 
 If a fact amounting to murder should be committed in prosecution of 
 some unlawful purpose though it were but a bare trespass, all persons 
 who had gone in order to give assistance, if need were, for carrying such 
 unlawful purpose into execution, would be guilty of murder. But 
 this will apply only to a case where the murder was committed in 
 prosecution of some unlawful purpose, some common design in which 
 the combining parties were united, and for the effecting whereof they 
 had assembled ; for unless this shall appear, though the person giving 
 the mortal blow may himself be guilty of murder, or manslaughter, 
 yet the others who came together for a different purpose will not be 
 
 (e) R. v. Bull, 1 Cox, C. C. 281. It fol- and did the act himself. See R. v. Brisac, 
 
 lows from this case that the trial of the 4 East R. 163. 
 guilty parties may be where the innocent (/) Moore's case, 1 Leach, 314. 
 
 agent made the plate, although they may be (g) R. v. Standley, MS. Bay ley, J., and 
 
 in another county, or even out of the king- R. & R. 305. R. v. County, MS. Bayley, J. 
 dom when the plate is made. In point of (h) R. v. Sheppard, 9 C. & P. 121. 
 
 law the act of the innocent agent is as much Coleridge, J. 
 the act of the procurer as if he were present
 
 168 Of Principals and Accessories. [book i. 
 
 involved in his guilt, (i) Thus where three soldiers went together to 
 rob an orchard : two got upon a pear-tree, and the third stood at the 
 gate with a drawn sword in his hand ; and the owner's son coming by- 
 collared the man at the gate, and asked him what business he had 
 there, whereupon the soldier stabbed him ; it was ruled to be murder 
 in the man who stabbed, but that those on the tree were innocent. It 
 was considered that they came to commit a small, inconsiderable 
 trespass, and that the man was killed upon a sudden affray without 
 their knowledge. But the decision would have been otherwise if they 
 had all come thither with a general resolution against all opposers ; 
 for then the murder would have been committed in prosecution of 
 their original purpose, (j) 
 
 Where on a trial for murder the case on the part of the Crown was, 
 that the prisoner and Jackson had followed the deceased for the pur- 
 pose of robbing him, and that, in pursuance of that object, one or both 
 of them struck the deceased on the head and killed him, and the pre- 
 ceding passage was cited for the prisoner ; Bramwell, B., told the jury, 
 ' The rule of law is this : if two persons are engaged in the pursuit of 
 an unlawful object, the two having the same object in view, and, in 
 the pursuit of that common object, one of them does an act which is 
 the cause of death under such circumstances that it amounts to murder 
 in him, it amounts to murder in the other also. The cases which have 
 been referred to may be explained in this way. The object for which 
 the parties went out was a comparatively trifling one, and it is almost 
 impossible to suppose that if one had committed a murder whilst 
 engaged in the pursuit of such an object, the act could have been 
 done in furtherance of the common object they had in view, which 
 was comparatively so unimportant.' ' Suppose two men go out 
 together, and one of them holds a third man for the purpose of 
 enabling his companion to cut that man's throat, and his companion 
 does so, no one could doubt that they were both equally guilty of 
 murder. Therefore, if you find the common unlawful object in the 
 two prisoners, and death ensuing from the act of Jackson in pursuance 
 of that common unlawful object, under such circumstances that it 
 was murder in him, it is your duty to find the prisoner guilty.' (k) 
 
 Where there is a general resolution against all opposers, whether such 
 resolution appears upon evidence to have been actually and explicitly 
 entered into by the confederates, or may be reasonably collected from 
 their number, arms, or behaviour, at or before the scene of action, and 
 
 (i) Fost. 351, 352. 2 Hawk. P. C. c. 29, soldiers began to plunder, and stole some 
 
 s. 9. See R. v. Howell, 9 C. & P. 437. goods. The question was, whether this was 
 
 per Littledale, J. felony in all ; and Holt, C. J., citing the 
 
 (j) Fost. 353. Case at Sarum Lent case, says, 'That they were all engaged in 
 
 Assizes, 1697, MS. Denton & Chappie, 2 an unlawful act is plain, for they could not 
 
 Hawk. P. C. c. 29, s. 8. R. v. Skeet, 4 F. & justify breaking a man's house without 
 
 F. 931. And see R. v. Hodgson and others, making a demand first ; yet all those who 
 
 1 Leach, 6; and an Anon, case at the Old were not guilty of the stealing were acquit- 
 
 Bailey, in December Sessions, 1664, 1 Leach, ted, notwithstanding their being engaged in 
 
 7, note (a), where several soldiers, who were one unlawful act of breaking the door ; for 
 
 employed by the messengers of the Secre- this reason, because they knew not of such 
 
 tary of State to assist in the apprehension intent, but it was a chance opportunity of 
 
 of a person, unlawfully broke open the door stealing, whereupon some of them did lay 
 
 of a house where the person was supposed hands.' 
 
 to be ; and having done so, some of the (k) R. v. Jackson, 7 Cox, C. C. 357-
 
 chap, in.] Of Principals and Accessories. 169 
 
 homicide is committed by any of the party, every person present in the 
 sense of the law when the homicide is committed will be involved in 
 the guilt of him that gave the mortal blow. (I) Thus where several 
 persons are together for the purpose of committing a breach of the 
 peace, assaulting persons who pass, and, while acting together in that 
 common object, a fatal blow is given, it is immaterial which struck 
 the blow, for the blow given under such circumstances is in point of 
 law the blow of all, and it is unnecessary to prove which struck the 
 blow, {til) 
 
 But it must be observed that this doctrine respecting the whole 
 party being involved in the guilt of one or more, will apply only to 
 such assemblies as are formed for carrying some common purpose, 
 unlawful in itself, into execution. For if the original intention was 
 lawful, and prosecuted by lawful means, and opposition is made by 
 others, and one of the opposing party is killed in the struggle, in 
 that case the person actually killing may be guilty of murder or man- 
 slaughter, as circumstances may vary the case ; but the persons engaged 
 with him will not be involved in his guilt, unless they actually aided 
 and abetted him in the fact ; for they assembled for another purpose 
 which was lawful, and consequently the guilt of the person actually 
 killing cannot by any fiction of law be carried against them beyond 
 their original intention, (n) 
 
 It is submitted that the true rule of law is, that where several 
 persons engage in the pursuit of a common unlawful object, and one 
 of them does an act which the others ought to have known was 
 not improbable to happen in the course of pursuing such common 
 unlawful object, all are guilty. 
 
 When several are present and abet a fact, an indictment may lay it 
 generally as done by all, or specially, as done by one and abetted by 
 the rest, (o) And even in offences in which there could have been 
 only one principal in the first degree, as in rape, a charge against all as 
 principals in the first degree is valid, if there be no difference in the 
 punishment between the principals in the first and those in the second 
 degree ; though it should seem that the more correct form in a case 
 of this kind would be to charge the parties according to the facts as 
 they will be proved, (jp) 
 
 An indictment against the principal in the second degree in murder 
 should show distinctly that he was present when the mortal stroke 
 was given ; and it should seem that it would not be sufficient to state 
 that both of their malice aforethought made the assault ; that the 
 principal in the first degree then and there gave the mortal stroke, and 
 so that both murdered ; at least it would not be sufficient if, before the 
 allegation that both murdered, it is stated that the one (the prin- 
 cipal in the second degree) counselled and incited the other to do the 
 act. (q) 
 
 (l) Fost. 353, 354. 2 Hawk. P. C. c. 29, (o) 2 Hawk. P. C. c. 23, s. 76, and c. 25, 
 
 s. 8. See post, title Murder. s. 64. R. v. Young, 3 T. R. 98. 
 
 (m) R. v. Harrington, 5 Cox, C. C 231. (p) R. v. Vide, Fitz. Corone, pi. 86. R. v. 
 
 Martin, B. See the Sissinghurst case and Burgess, Tr. T. 1813. Post, Book III., ch. 5. 
 
 others cited j)ost, title Murder. (q) R. v. Winifred & Thomas Gordon, 
 
 (n) Fost. 354, 355. 2 Hawk. P. C. 1 Leach, 515. 1 East, P. C. 352. 
 c. 29, s. 9.
 
 170 Of Principals and Accessories. [book i. 
 
 Accessories before the fact. 1 — III. An accessory before the fact is 
 he who, being absent at the time of the offence committed, doth yet 
 procure, counsel, command, or abet another to commit a felony, (r) 
 And it seems that those who by hire, command, counsel, or conspiracy, 
 and those who by showing an express liking, approbation, or assent to 
 another's felonious design of committing a felony, abet and encourage 
 him to commit it, but are so far absent when he actually commits it 
 that he could not be encouraged by the hopes of any immediate help 
 or assistance from them, are accessories before the fact, (s) But 
 words that amount to bare permission will not make an accessory, as 
 if A. says he will kill J. S., and B. says, ' You may do your pleasure 
 for me,' this will not make B. an accessory, (t) And it seems to be 
 generally agreed that he who barely conceals a felony which he knows 
 to be intended is guilty only of misprision of felony, and shall not be 
 adjudged an accessory, (u) The same person may be a principal and 
 an accessory in the same felony, as where A. commands B. to kill C, 
 and afterwards actually joins with him in the fact, (v) 
 
 Probably, in point of law, any degree of incitement, with the actual 
 intent to procure the commission of the crime, is sufficient, and it is 
 no defence to show that the crime was not committed in consequence 
 of the incitement, but from some other motive (see 2 Stark. Ev. 8, 
 2nd ed.). But there must be some degree of direct incitement. A 
 woman who was pregnant took a dose of corrosive sublimate and died. 
 The dose was procured at her desire by the prisoner, who knew the 
 purpose for which it was to be used. The jury found that the prisoner 
 did not administer the poison, or cause it to be taken, but that he had 
 delivered it with knowledge of the purpose to which she intended to 
 apply it, and was, therefore, an accessory before the fact to murder. 
 But the Court held that he was not an accessory before the fact. He 
 was unwillling that she should take the poison. He procured it at 
 her instigation, and under a threat by her of self-destruction ; and the 
 facts were consistent with the supposition, that he hoped and expected 
 that she would change her mind and not resort to it. (w) The facts 
 of the above case would, however, have been sufficient to convict the 
 prisoner upon a charge of procuring or supplying poison, under 24 & 
 25 Vict. c. 100, s. 59. 
 
 (/•) 1 Hale, 615. In Atkins' case who was tried for the mur- 
 
 (s) 2 Hawk. P. C. c. 29, s. 16. der of Sir E. Godfrey, two indictments were 
 
 (t) 1 Hale, 616. found against him, one as principal, the 
 
 (it) 1 Hale, 616. 2 Hawk. P. C. c. 29, other as accessory; and he was arraigned 
 
 s. 23. upon hoth at the same time. But the first 
 
 (v) 2 Hawk. P. C. c. 29, s. 1, where it was abandoned, and evidence given only in 
 
 is said also that he may be charged as prin- support of the second ; the verdicts appear 
 
 cipal and accessory in the same indictment ; however to have been pronounced succes- 
 
 but this was not allowed, R. v. Madden, sively. 7 Howell's St. Tri. 231. 
 R. & M., C. C. R. 277 ; R. v. Galloway, (w) R. v. Fretwell, L. & C. 161. 2 
 
 ibid. 234, until the 11 & 12 Vic. c. 46, s. 1. 
 
 Ameiucan Notes. 
 
 1 The difference between accessories be- v. S., 13 Texas, 168; Brennan v. P., 15 111. 
 
 fore the fact and principals has been 511 ; M'Carty v. S., 26 Miss. 299 ; Hately 
 
 abolished in some States of America. See v. S., 15 Geo. 346; U. S. v. Ramsey, 1 
 
 Shannon v. P., 5 Mich. 71 ; P. v. Bigler, Hemp. 481. 
 
 5 Cah 23. As to other States, see Jones 2 See as to incitement, Bishop, i. 768(2).
 
 chap, in.] Of Principals and Accessories. 171 
 
 So also, where the prisoner held the stakes for a prize fight, Cock- 
 burn, C. J., delivering the judgment of the Court, said: 'To sup- 
 port an indictment for being accessory before the fact to man- 
 slaughter, there must be an active proceeding on the part of the 
 prisoner. He is perfectly passive here, all he does is to accept the 
 stakes.' (x) 
 
 The offence of an accessory before the fact differs so much from that 
 of a principal in the second degree, that where a person was indicted 
 as an accessory before the fact, it was held that she could not be 
 convicted of that charge upon evidence proving her to have been 
 present aiding and abetting; it being clearly admitted to lie neces- 
 sary to charge a principal in the second degree with being present, 
 aiding and abetting. (?/) 
 
 Where Danelly was indicted for a burglary with intent to steal, and 
 with stealing certain goods in the house, and Vaughan as an accessory 
 to ' the said burglary,' and Danelly had been acquitted of the burglary, 
 but found guilty of the larceny, and Vaughan found guilty as acces- 
 sory, it was objected that as the jury had acquitted the principal of 
 the burglary, the accessory must be acquitted altogether. But a great 
 majority of the judges were of opinion that, as Danelly acted in order 
 to detect the other prisoner, he was free from any felonious intent, 
 and therefore the charge against Vaughan, as accessory, of course could 
 not be supported, (s) 
 
 It is to be observed, that the Legislature, in statutes made from time 
 to time concerning accessories before the fact, has not confined itself to 
 any certain mode of expression ; but has rather chosen to make use of 
 a variety of words all' terminating in the same general idea. Thus 
 some statutes make use of the word accessories, singly, without any 
 words descriptive of the offence ; (a) others have the words abetment, 
 procurement, helping, maintaining, and counselling ; (b) or aiders, abet- 
 tors, procurers, and counsellors, (c) One describes the offence by the 
 words command, counsel, or hire ; (^) another calls the offenders pro- 
 curers or accessories, (e) One having made use of the words comfort, 
 aid, abet, assist, counsel, hire, or command, immediately afterwards, in 
 describing the same offence in another case, uses the words counsel, 
 hire, or command only. (/) One statute calls them counsellors and 
 contrivers of felonies ; (g) and many others make use of the terms 
 counsellors, aiders, and abettors, or barely aiders and abettors. Upon 
 these different modes of expression, all plainly descriptive of the same 
 offence, Foster, J., thinks it may safely be concluded that in the con- 
 struction of statutes we are not to be governed by the bare sound, but 
 by the true legal import of the words ; and that every person who 
 comes within the description of these statutes, various as they are in 
 point of expression, is in the judgment of the Legislature an accessory 
 before the fact ; unless he is present at the fact, and in that case he is 
 
 (x) R. v. Taylor, 44 L. J. M. C. 67; (a) 31 Eliz. c. 12, s. 5. 21 Jac. 1, c. 6. 
 
 L. R. 2 C. C. R. 148. 13 Cox, C. C. 68. (b) 23 Hen. 8, c. 1, s. 3. 
 
 {y) R. v. Winifred & Thomas Gordon, (c) 1 Ed. 6, c. 12, s. 13. 
 
 1 Leach, 515. S. C. 1 East, P. C. 352. (d) 4 & 5 Ph. & M. c. 4. 
 
 And see Haydon's case, 4 Co. 42 b. (e) 39 Eliz. c. 9, s. 2. 
 
 (z) R. v. Danelly & Vaughan, 2 Marsh, ( /) 3 & 4 Will. & M. c. 9. 
 
 571, and R. & R. 310. (g) 1 Ann. st. 2, c. 9.
 
 172 0/ Principals and Accessories. [book i. 
 
 undoubtedly a principal, (h) See the present general enactment, 24 & 
 25 Vict. c. 94, s. 2, noticed post. 
 
 Whoever procures a felony to be committed, though it be by the 
 intervention of a third person, is an accessory before the fact ; for 
 there is nothing in the notion of commanding, hiring, counselling, 
 aiding, or abetting, which may not be effected by the intervention 
 of a third person without any direct immediate connection between 
 the first mover and the actor. It is a principle in law which can 
 never be controverted, that he who procures a felony to be done is 
 a felon. So that if A. bid his servant to hire somebody, no matter 
 whom, to murder B. and furnish him with money for that purpose, 
 and the servant procure C, a person whom A. never saw nor heard 
 of, to do it, A., who is manifestly the first mover or contriver of the 
 murder, is an accessory before the fact. (*) And a nobleman was 
 found guilty of murder, by his peers, upon evidence which satisfied 
 them that he had contributed to the murder, by the intervention of 
 his lady and of two other persons who were themselves no more than 
 assessories, without any sort of proof that he had ever conversed with 
 the person who was the only principal in the murder, or had corre- 
 sponded with him directly by letter or message. (/) For with respect 
 to an accessory before the fact, it is not necessary that there should be 
 any direct communication between the accessory and the principal. 
 
 In high treason there are no accessories, but all are principals, on 
 account of the heinousness of the crime, (k) But in murder, and 
 felonies in general, there may be accessories, except only in those 
 offences which by judgment of law are sudden and unpremeditated ; 
 such are some cases of manslaughter and the like, where there cannot 
 be any accessories before the fact. (I) But there are other cases of 
 manslaughter where there may be accessories before the fact. Upon 
 an indictment for manslaughter it appeared that the death of the 
 prisoner's wife was caused by swallowing sulphate of potash for the 
 purpose of procuring abortion, she believing herself to be pregnant, 
 although in reality she was not. The prisoner purchased the sulphate 
 of potash, and gave it to his wife in order that she might swallow it 
 for the above-mentioned purpose, but he was absent at the time when 
 
 (h) That is, a principal in the first de- (/) The case of the Earl of Somerset, in- 
 
 gree if the actual perpetrator, or a principal in dieted as an accessory before the fact to the 
 
 the second degree if only an aider and abettor, murder of Sir Thomas Overbury. 19 St. 
 
 Fost. 131. And see Fost. 130, where, speak- Tri. 804. R. v. Cooper, 5 C. & P. 535, per 
 
 ing of a case in 1 And. 195, in which an in- Parke, J. 
 
 dictment was held to be sufficient, though the (k) 2 Hawk. P. C. c. 29, s. 2, 5. 1 Hale, 
 words of the statute of Ph. & M. were not 613. Fost. 341. 4 Blac. Com. 35. 
 pursued, the words excitavit, vwvit, etprocur- (!) Bibithe's case, 4 Rep. 43, Moor, 461. 
 avit, being deemed tantamount to the words Cro. Eli. 540. 4 Blac. Com. 36. 1 Hale, 
 of the statute and descriptive of the same 615. 2 Hawk. P. C. c. 29, s. 24. There 
 offence, he says that he takes that case to be may be accessories after in manslaughter, 
 good law, though he confesses it is the only and if the principal be found guilty of man- 
 precedent he has met with where the words slaughter, upon an indictment for murder, a 
 of the statute have been totally dropped. party charged as accessory after the fact to 
 
 (i) See the case of M'Daniel, Egan, and the murder, may be found guilty as acces- 
 
 Berry, Fost. 125 ; 2 Hawk. P. C. c. 29, sory to the manslaughter. R. v. Greenacre, 
 
 s. 1, 10 ; 19 Howell's St. Tri. 746, 789. A 8 C. & P. 35. Tindal, C. J., Coleridge and 
 
 soliciting and inciting a person to commit Coltman, JJ. Approved in R. v. Richards, 
 
 a felony when no felony is committed, is a 2 Q. B. D. 311. 
 misdemeanor only. R. v. Gregory, 10 Cox, 
 C C. 459.
 
 chap, in.] Of Principals and Accessories, 173 
 
 she swallowed it. For the prosecution, it was contended that the wife 
 committed a felony in swallowing the sulphate of potash, and as death 
 ensued therefrom, she also committed murder ; (m) that the prisoner 
 was an accessory before the fact to this felony, and to the consequent 
 murder, and might be tried under the 11 & 12 Vict. c. 46, s. 1, and 
 that, although the evidence showed his offence was murder, yet that 
 would support an indictment for manslaughter. For the prisoner it 
 was contended that there could not be an accessory before the fact in 
 manslaughter ; but it was held, upon the facts of this case, that the 
 prisoner might be convicted of manslaughter, (n) 
 
 In forgery it is laid down generally in the books that all are princi- 
 pals, and that whatever would make a man accessory before the fact 
 in felony would make him a principal in forgery ; (o) but it is conceived 
 that this must be understood of forgery at common law, and where it 
 is considered only as a misdemeanor. ( p) 
 
 If several combine to forge an instrument, and each executes by 
 himself a distinct part of the forgery, they are all principals, though 
 they are not together when the instrument is completed. On an 
 indictment for forgery against Bingley, Dutton, and Batkin, it ap- 
 peared that Bingley and Dutton bought the paper, and cut it into 
 pieces of the proper size at their house ; it was then taken to Batkin, 
 who struck off in blank all the printed part of the note except the 
 date line and the number, and impressed on the paper the wavy 
 horizontal lines. The blanks were then brought back to the house of 
 Bingley and Dutton, where the water-mark was introduced into the 
 paper ; after which Bingley, in the presence of Dutton, impressed the 
 date line and number, and Dutton added the signature. It did not 
 appear that Batkin was present at this time. The jury found that all 
 three concurred and co-operated in the design and execution of the 
 forgery, each taking his own part, and that Bingley and Dutton acted 
 together in completing the notes. The judges were of opinion that, as 
 each of the prisoners acted in completing some part of the forgery, and 
 in pursuance of the common plan, each was a principal in the forgery ; 
 and that although Batkin was not present when the note was com- 
 pleted by the signature, he was equally guilty with the others, (q) 
 
 So if several make distinct parts of a forged instrument, each is 
 a principal, though he does not know by whom the other parts are 
 executed, and though it is finished by one alone in the absence of the 
 others, (r) On an indictment against Dade, Kirkwood, and Stansfield, 
 for forging a note, and against Collins and Campbell as accessories 
 before the fact, it appeared that Stansfield made the paper, Kirkwood 
 
 (m) R. v. Russell, R. & M. C. C. 356. Acts, 43, 2nd ed.; and see R. v. Wilson, 1 
 
 (n) R. v. Gaylor, 1 D. & B. 288. Dur- D. & B. 127 ; and R. v. Farrow, ibid. 164. 
 
 ing the argument, Bramwell, B., said, ' Sup- (o) Bothe's case, Moor, 666. 1 Sid. 312. 
 
 pose a man for mischief gives another a 2 Hawk. c. 29, s. 2, and authorities cited in 
 
 strong dose of medicine, not intending any 2 East, P. C. 973. 
 
 further injury than to cause him to be sick (p) 2 East, P. C. 973 ; and see vol. 2, 
 
 and uncomfortable, and death ensues, would Forgery; and see Morris's case, 2 Leach, 
 
 not that be manslaughter ? Suppose, then, 1096, note (a). 
 
 another had counselled him to do it, would (q) R. v. Bingley, R. & R. 446. 
 
 not he who counselled be an accessory be- (r) R. v. Kirkwood, R. & M. 304. R. v. 
 
 fore the fact ? ' See R. v. Smith, 2 Cox, Dade, ibid. 307. R. v. Bingley, R. & R. 
 
 C. C. 233, per Parke, B., S. P. See the 446. 
 
 observations on this subject, Greaves' Cr.
 
 174 Of Principals and Accessories. [book i. 
 
 engraved the plate, and struck off the impression ; and Dade, in the 
 absence of Stansfield and Kirkwood, filled up and finished the note. 
 Stansfield, when he made the paper, did not know that Kirkwood or 
 Dade were to have anything to do with the forgery; nor did Kirkwood 
 know, when he engraved the plate and made the impression, that 
 Dade or Stansfield were, or were to be, concerned. Collins and Camp- 
 bell were the movers, and through them all the parties were set to 
 work. Dade was not upon his trial, and Collins and Campbell could 
 not properly be tried, unless Stansfield and Kirkwood were to be 
 deemed principals. The judges were unanimous that Kirkwood and 
 Stansfield were principals, and that the ignorance of Stansfield and 
 Kirkwood of those who were to effect the other parts of the forgery 
 was immaterial : it was sufficient if they knew it was to be effected by 
 somebody, (s) There was another indictment against Dade and Kirk- 
 wood for forgery, and against Collyer and Calvert as accessories before 
 the fact. Kirkwood engraved the plate, and worked off the impression 
 from it, and Dade, in his absence, filled up the notes ; Dade was not 
 on his trial. It was held, that Kirkwood was a principal, (t) 
 
 It follows, from the two last cases, that those who procure and 
 cause an instrument to be forged, but execute no part of the forgery, 
 and are not present when it is executed, are accessories before the 
 fact, and not principals. 
 
 Where three persons agreed to utter a forged bank note, and one 
 uttered it at Gosport, and the other two, by previous concert, waited 
 at Portsmouth ; the two latter were held to be accessories, (u) 
 
 In crimes under the degree of felony there can be no accessories ; l 
 but all persons concerned therein, if guilty at all, are principals, (v) 
 
 It should be observed, as to felonies created by Acts of Parliament, 
 that regularly if an Act of Parliament enact an offence to be felony, 
 though it mention nothing of accessories before or after, yet virtually 
 and consequentially those that counsel or command the offence are 
 accessories before the fact, (w) and those who knowingly receive the 
 offender are accessories after, (x) 
 
 It is a maxim that accessories sequitur naturam sui principalis ; (y) 
 and therefore an accessory cannot be guilty of a higher crime than his 
 principal. Certain accessories after the fact, namely receivers of stolen 
 goods, are in some instances punished with more severity than the 
 principal offenders, [z) 
 
 (s) R. v. Kirkwood, 3 Burn, J. D. & W. (v) 4 Blac. Com. 36. 1 Hale, 613. R. 
 
 Ed. 286, MSS. Bayley, B. ; S. C., R. v. v. Burton, 13 Cox, C. C. 71. 
 Dade, R. & M. 307. (w) R. v. James, 24 Q. B. D. 439. 
 
 (0 R. v. Kirkwood, 3 Burn, J. D. & W. (a;) 1 Hale, 613, 614, 704. 3 Inst. 59. 
 
 Ed. 286, MSS. Bayley, B.; S. C, R. & M., See 24 & 25 Vict. c. 94, p. 2. 
 C. C. R. 304. (y) 3 Inst. 139. 4 Blac. Com. 36. 
 
 (u) R. i'. Soares, Atkinson and Brighton, (z) Fourteen years' penal servitude, by 
 
 MS. ; S. C, 2 East, P. C. 974. R. & R. 25 ; 24 & 25 Vict. c. 96, s. 91. 
 and see R. v. Badcock, R. & R. 249. 
 
 American Note. 
 
 1 This is so also in America, where those § 226. and other passages, that in small 
 
 who aid in the commission of misdemeanors misdemeanors one who does some slight 
 
 are principals. Williams v. S., 11 S & M. act, or stands by and urges the act, is not 
 
 58. Baker v. S., 12 Ohio (x. s.) 214. But punishable, 
 it is maintained by Mr. Bishop, in Vol. i.
 
 chap, in.] Of Principals and Accessories. 175 
 
 It has been occasionally much considered how far an accessory is 
 involved in the guilt of the principal when the principal does not 
 act in conformity with the plans and instructions of the accessory. 
 With regard to this, it appears that if the principal totally and sub- 
 stantially varies from the terms of the instigation, if being solicited 
 to commit a felony of one kind, he wilfully and knowingly commit 
 a felony of another, he will stand single in that offence, and the 
 person soliciting will not be involved in his guilt, (a) Thus if A. 
 command B. to burn C.'s house, and he in so doing commits a rob- 
 bery ; now A., though accessory to the burning, is not accessory to 
 the robbery, for that is a thing of a distinct and unconsequential 
 nature, (b) And if A. counsels B. to steal goods of C. on the road, 
 and B. breaks into C.'s house and steals them there, A. is not accessory 
 to the breaking the house, because that is a felony of another kind. (<?) 
 He is, however, accessory to the stealing, (d) But if the principal com- 
 plies in substance with the instigation of the accessory, varying only 
 in circumstances of time or place, or in the manner of execution, the 
 accessory will be involved in his guilt : as if A. command B. to murder 
 C. by poison, and B. does it by a sword or other weapon or by any 
 other means, A. is accessory to this murder ; for the murder of C. was 
 the object principally in contemplation, and that is effected, (c) And 
 it seems that if A. counsels B. to steal goods in C.'s house, but not to 
 break into it, and B. does break into it, A. is accessory to the break- 
 ing, (f) And where the principal goes beyond the terms of the solicita- 
 tion, yet if, in the event, the felony committed was a probable 
 consequence of what was ordered or advised, the person giving such 
 orders or advice will be an accessory to that felony. As if A. advise 
 B. to rob C, and in robbing him B. kills him, either upon resistance 
 made, or to conceal the fact, or upon any other motive operating at 
 the time of the robbery ; or if A. solicit B. to burn the house of C, and 
 B. does it accordingly ; and the flames taking hold of the house of D., 
 that likewise is burnt : in these cases A. is accessory to B. both in the 
 murder of C. and in the burning of the house of D. The advice, soli- 
 citation, or orders were pursued in substance, and were extremely 
 flagitious on the part of A. ; and the events, though possibly falling 
 out beyond his original intention, were, in the ordinary course of 
 things, the probable consequences of what B. did under the influence 
 and at the instigation of A. (g) 
 
 Where A. counselled a pregnant woman to murder her child when 
 it should be born, and she murdered it accordingly, A. was held to be 
 accessory to the murder ; the procurement before the birth being con- 
 sidered as a felony continued after the birth, and until the murder 
 was perpetrated by reason of that procurement. (&) 
 
 But more difficult questions arise where the principal by mistake 
 commits a different crime from that to which he was solicited by the 
 accessory. It has been said, that if A. orders B. to kill C, and he by 
 mistake kills D., or aiming a blow at C. misses him and kills D., A. 
 
 {a) Fost. 369. (c) Fost. 369, 370. 2 Hawk. P. C. c. 29, 
 
 (b) 1 Hale, 617. 4 Blac. Com. 37. s. 20. 
 
 (c) Plowd. 475. (/) Bac. Max. Re^. 16. 
 Id) 1 Hale, 617. (g) Fost. 370. 
 
 (h) R. v. Park<-i , Dy. 186, a. pi. 2.
 
 176 Of Principals and Accessories. [book i. 
 
 will not be accessory to this murder, because it differs in the person, (i) 
 And in support of this position Saunders' case (/) is cited ; who, with 
 the intention of destroying his wife, by the advice of one Archer, mixed 
 poison in a roasted apple, and gave it her to eat ; and the wife, having 
 eaten a small part of it, and having given the remainder to their child, 
 Saunders (making only a faint attempt to save the child whom he 
 loved, and would not have destroyed) stood by and saw it eat the 
 poison, of which it soon afterwards died. And it was held, that 
 though Saunders was clearly guilty of the murder of the child, yet 
 Archer was not accessory to that murder. But Foster, J., thinks that 
 this case of Saunders does not support the position (which he calls a 
 merciful opinion) to its full extent ; and he proposes the following 
 case as worthy of consideration : ' B. is an utter stranger to the per- 
 son of C. ; A. therefore takes upon him to describe him by his stature, 
 dress, age, complexion, &c, and acquaints B. when and where he may 
 probably be met with. B. is punctual at the time and place ; and D., 
 a person possibly in the opinion of B answering the description, 
 unhappily comes by and is murdered, upon a strong belief on the part 
 of B. that this is the man marked out for destruction. Here is a 
 lamentable mistake, — but who is answerable for it ? B. undoubtedly 
 is ; the malice on his part egreditur personam. And may not the 
 same be said on the part of A. ? The pit which he, with a murderous 
 intention, dug for C, D. through his guilt fell into and perished. For 
 B., not knowing the person of C, had no other guide to lead him to 
 his prey than the description A. gave of him. B. in following this 
 guide fell into a mistake, which it is great odds any man in his cir- 
 cumstances might have fallen into. I therefore, as at present advised, 
 conceive that A. was answerable for the consequence of the flagitious 
 orders he gave, since that consequence appears, in the ordinary course 
 of things, to have been highly probable.' (k) 
 
 Foster, J., then proposes the following criteria, as explaining the 
 grounds upon which the several cases falling under this head will be 
 found to turn : ' Did the principal commit the felony he stands charged 
 with under the influence of the flagitious advice ; and was the event, in 
 the ordinary course of things, a probable consequence of that felony ? 
 or did he, following the suggestions of his own wicked heart, wilfully 
 and knowingly commit a felony of another kind, or upon a different 
 subject ? ' (I) 
 
 A. commands B. to kill C, but before the execution thereof repents 
 and countermands B., yet B. proceeds in the execution thereof ; A. is 
 not accessory, for his consent continues not, and he gave timely coun- 
 termand to B. : but though A. had repented, yet if B. had not been 
 actually countermanded before the fact committed, A. had been 
 accessory, (m) 
 
 Accessories after the fact. 1 — IV. An accessory after the fact is 
 a person who, knowing a felony to have been committed by another 
 
 (i) 1 Hale, 617. 3 Inst. 51. (I) Fost. 372. 
 
 (j) Plowd. 475. 1 Hale, 431. (m) 1 Hale, 617. 
 
 (k) Fost. 370, 371. 
 
 American Note. 
 1 As to accessories after the fact in America, see Harrill v. S., 29 Miss. 702.
 
 CHAP, in.] Of Principals and Accessories. 177 
 
 receives, relieves, comforts or assists the felon, (n) And it seems to 
 have been agreed, that any assistance given to one known to be a 
 felon, in order to hinder his being apprehended or tried, or .suffering 
 the punishment to which he is condemned, is a sufficient receipt to 
 make a man an accessory of this description : as where one assists a 
 felon with a horse to ride away, or with money or victuals to support 
 him in his escape, or where one harbours and conceals in his house 
 a felon under pursuit, by reason whereof the pursuers cannot find 
 him ; and much more where one harbours in his house and openly 
 protects such a felon, by reason whereof the pursuers dare not take 
 him. (o) If A. has his goods stolen by B., and C. knowing they 
 were stolen receives them, this simply of itself makes not an acces- 
 sory ; but if B. come to C. and deliver him the goods to keep for 
 him, C. knowing that they were stolen, and that B. stole them, or 
 if C. receive the goods to facilitate the escape of B., or if C. knowingly 
 receives them upon agreement to furnish B. with supplies out of 
 them, and accordingly supplies him, this makes C. an accessory. 
 But the bare receiving of stolen goods, knowing them to be stolen, 
 makes not an accessory ; for he may receive them to keep for the 
 true owner, or till they are recovered or restored by law. (p) 
 
 Where, after setting out the conviction of a principal for a robbery 
 of a £100 note, an indictment alleged that the prisoner did receive, 
 harbour, maintain, relieve, aid, comfort, and assist the principal, know- 
 ing him to have committed the robbery, and it appeared that shortly 
 after the robbery the prisoner applied to his landlady to change the 
 note, but did not succeed, and that the principal went to a shop to 
 purchase some articles, for the payment of which he tendered the 
 note, and received a large part of it in change, and that during the 
 time he was in the shop the prisoner was waiting outside ; Maule, J., 
 held that there was evidence of comforting and assisting. If a man 
 stole a horse, and another assisted him in colouring and disguising 
 him, so that he could not be known again, that would make him an 
 accessory. Here the prisoner assists the party who has stolen the 
 note to get rid of it, and thus evade the justice of the country. (7) 
 
 Where a lad robbed a banking house, in which he was clerk, and 
 the same evening went to the room of the prisoner, a man, where 
 he stayed twenty minutes, and both of them proceeded together 
 that evening, by coach, to Bristol, and thence to Liverpool, where 
 they were apprehended before they set sail for America, whither 
 the prisoner had said they were going : it was held that this was 
 evidence to go to the jury, upon an indictment charging the prisoner 
 with harbouring, receiving, and maintaining the boy, although the 
 places in the coaches were paid for by the boy. (r) So a man who 
 employs another person to harbour the principal may be convicted 
 as an accessory after the fact, although he himself did no act of 
 relieving or assisting the principal, (s) 
 
 Also, whoever rescues a felon from an arrest for the felony, or 
 
 (n) 1 Hale, 618. 4 Blac. Com. 37. (?) R. v. Butterfield, 1 Cox, C, C. 39. 
 
 (o) 2 Hawk. P. C. c. 29, s. 26. 1 Hale, (>■) R. v. Lee, 6 C. & P. 536, Williams, J. 
 
 618, 619. 4 Blac. Com. 38. (s) R. v. Jarvis, 2 M. & Rob. 40. 
 
 (p) 1 Hale, 619. Gumey, B. 
 
 VOL. I. — 12
 
 178 Of Principals and Accessories. [book i. 
 
 voluntarily and intentionally suffers him to escape, is an accessory 
 to the felony : (t) and it has been said, that those are in like manner 
 guilty who oppose the apprehending of a felon, (u) A man may be 
 an accessory after the fact by receiving one who was an accessor)' 
 before, as well as by receiving a principal, (t>) And a man may 
 make himself an accessory after the fact to a larceny of his own 
 goods, or to a robbery on himself, by harbouring or concealing the 
 thief, or assisting in his escape, (w) 
 
 In order to support a charge of receiving, harbouring, comforting, 
 assisting and maintaining a felon, there must be some act proved to 
 have been done to assist the felon personally ; it is not enough to 
 prove possession of various sums of money derived from the disposal 
 of the property stolen, (x) 
 
 Where an indictment alleged that Mills sent letters demand- 
 ing money with menaces, and that the prisoner did ' feloniously 
 receive, harbour, maintain, and assist' the said Mills, knowing her 
 to have committed the said felony, and the letters contained threats 
 of exposing the immorality of the prosecutor, and one of them 
 threatened to insert a paragraph in the ' Satirist ; ' and immediately 
 afterwards articles reflecting on the prosecutor appeared in that paper 
 of which the prisoner was the proprietor, and on being cautioned as 
 to the course he was pursuing, the prisoner said he could not stop 
 the publication of such articles in future, and referred to Mills, and 
 gave her address, and on being told that the prosecutor would sub- 
 mit to a little extortion rather than have his character assailed, the 
 prisoner consented to wait a week that the prosecutor might be 
 spoken to on the subject. Notices, however, that further articles of 
 the same nature would be published continued to appear in the 
 ' Satirist.' It was contended that there was no evidence to prove 
 that the prisoner was an accessory ; it was answered that any assist- 
 ance given to the principal to enable her to carry out the object with 
 which the felony was committed was sufficient. Erie, J. : ' I do not 
 agree to that proposition ; the assistance must tend to prevent the 
 principal felon from being brought to justice. The question is, did 
 ne, after the felony was complete, assist the felon to elude justice ? 
 It is no part of this felony that the money should be paid : the crime 
 is complete as soon as the demand is made. Can it be said, then, 
 that by assisting in a fresh attempt to obtain money, he aided her 
 in concealing or even carrying out the one completed ? ' Erie, J., 
 however, left the case to the jury, intending to reserve the point ; 
 but the jury acquitted the prisoner, (y) 
 
 Where an Act of Parliament enacts an offence to be felony, though 
 it mentions nothing of accessories, yet virtually and consequentially 
 those that knowingly receive the offender are accessories after, (z) 
 It has, however, been said, that if the Act of Parliament that makes 
 
 (t) 2 Hawk. P. C. c. 29, s. 27. 1 Hale, (w) Fost. 123. Cromp. Just. 41 b, pi. 4 
 
 619 ; but not the merely suffering him to and 5. 
 
 escape, where it is a bare omission. 1 Hale, (a;) R. v. Chappie, 9 C. & P. 355. Law, 
 
 619. 2 Hawk. P. C. c. 29, s. 29. R., after consulting Littledale, J., and 
 
 (u) 2 Hawk. P. C. c. 29, s. 27. Alderson, B. 
 
 (v) 2 Hawk. P. C. c. 29, s. 1. (y) R. v. Hansill, 3 Cox, C. C. 597. 
 
 (z) 1 Hale, 613. Ante, p. 174.
 
 chap, in.] Of Principals and Accessories. 179 
 
 the felony in express terms, comprehend accessories before, and make 
 no mention of accessories after, it seems there can be no accessories 
 after; the expression of procurers, counsellors, abettors, all which 
 import accessories before, making it evident that the Legislature did 
 not intend to include accessories after, whose offence is of a lower 
 degree than that of accessories before, (a) But by others it is con- 
 sidered to be settled law, that in all cases where a statute makes 
 any offence treason, or felony, it involves the receiver of the offender 
 in the same guilt with himself, in the same manner as in treason or 
 felony at common law, unless there be an express provision to the 
 contrary, (b) And although it be generally true, that an Act of Parlia- 
 ment creating a felony renders consequentially accessories before and 
 after, within the same penalty, yet the special penning of the Act 
 sometimes varies the case : thus the 3 Hen. 7, c. 2 (now repealed), for 
 taking away women, made the taking away, the procuring and abetting, 
 and also the wittingly receiving, all equally felonies and excluded from 
 clergy. So that Acts of Parliament may diversify the offences of 
 accessory or principal according to their various penning, and have 
 done so in many cases, (c) 
 
 There is no doubt but that it is necessary for a receiver to have 
 had notice, either express or implied, of the felony having been com- 
 mitted, in order to make him an accessory by receiving the felon ; (d) 
 and it is also agreed, that the felony must be complete at the time 
 of the assistance given, else it makes not the assistant an accessory. 
 So that if one wound another mortally, and after the wound given, 
 but before death ensues, a person assists or receives the delinquent ; 
 this does not make him accessory to the homicide, for till death 
 ensues there is no felony committed, (e) 
 
 The law has such a regard to the duty, love, and tenderness, which 
 a wife owes to her husband, that it does not make her an accessory 
 to felony by any receipt whatever which she may give to him ; con- 
 sidering that she ought not to discover her husband. (/) 
 
 It is not thought necessary to discuss further the general prin- 
 ciples of law relating to accessories after the fact, since prosecutions 
 against such persons grounded on the common law are seldom insti- 
 tuted at the present time; nor do they appear to have been fre- 
 quent for many years past, nor to have had any great effect, (g) It 
 should seem, however, that the 7 & 8 Geo. 4, c. 28, ss. 8, 9 will apply 
 to accessories after the fact, where no punishment is specially provided 
 for their felony, (h) The Consolidation Acts of the 24 & 25 Vict, 
 make accessories after the fact to felonies punishable under those Acts 
 respectively liable to imprisonment for any term not exceeding two 
 years, (i) 
 
 (a) 1 Hale, 614. (/) 2 Hawk. c. 29. s. 34. 1 Hale, 621. 
 
 (b) 2 Hawk. P. C. c. 29, s. 14. Ante, p. 158. But this applies to no other 
 
 (c) 1 Hale, 614. relation besides that of a wife to her hus- 
 
 (d) 2 Hawk. P. C. c. 29, s. 32. band; and the husband may be an accessory 
 
 (e) 2 Hawk. c. 29, s. 35. 4 Blac. Com. for the receipt of his wife. 1 Hale, 621. 
 38 ; but I apprehend it would make him (a) Fost. 372. 
 
 accessory to the felony of maliciously wound- (h) See ante, p. 65. 
 
 ing. C. S. G. (/) See post, p. 184.
 
 180 0/ Principals and Accessories. [book i. 
 
 Proceedings against accessories. 1 — The principal and accessory may 
 be indicted in the same indictment, and tried together, which is the 
 best and most usual course. Formerly the accessory could not, with- 
 out his own consent, have been brought to trial till the guilt of the 
 principal was legally ascertained by conviction or outlawry, unless 
 they were tried together, (j) And an accessory could not in such case 
 have been tried, unless the principal had been attainted, so that if the 
 principal stood mute of malice, or challenged peremptorily above the 
 legal number of jurors, or refused to answer directly to the charge, 
 the accessory could not have been put upon his trial, (k) But the 24 
 & 25 Vict. c. 94, has made the following salutary provisions for the 
 effectual prosecution of accessories. 
 
 As to accessories before the fact : — (7) 
 
 Sec. 1. ' Whosoever shall become an accessory before the fact to 
 any felony, whether the same be a felony at common law or by virtue 
 of any Act passed or to be passed, may be indicted, tried, convicted, 
 and punished in all respects as if he were a principal felon.' 
 
 Sec. 2. 'Whosoever shall counsel, procure, or command any other 
 person to commit any felony, whether the same be a felony at common 
 law or by virtue of any Act passed or to be passed, shall be guilty of 
 felony, and may be indicted and convicted either as an accessory before 
 the fact to the principal felony, together with the principal felon, or 
 after the conviction of the principal felon, or may be indicted and con- 
 victed of a substantive felony whether the principal felon shall or shall 
 not have been previously convicted, or shall or shall not be amenable 
 to justice, and may thereupon be punished in the same manner as any 
 accessory before the fact to the same felony, if convicted as an acces- 
 sory, may be punished.' (m) 
 
 Sec. 1 is taken from the 11 & 12 Vict. c. 46, s. 1, upon which it was 
 held, that it was no objection to an accessory before the fact being con- 
 victed that his principal had been acquitted. Hall and Hughes were 
 jointly indicted for stealing certain cotton. Hall was acquitted and 
 called as a witness against Hughes ; and it clearly appeared that Hall 
 had stolen the cotton at the instigation of Hughes, and in his absence. 
 It was contended, that as Hall had been acquitted, Hughes must be so- 
 also ; for the statute had only altered the form of pleading, and not 
 the law, as to accessories before the fact ; but it was held, that the 
 statute had made the offence of the accessory before the fact a sub- 
 stantive felony, and that the old law, which made the conviction of 
 the principal a condition precedent to the conviction of the accessory,, 
 was done away by that enactment, (n) 
 
 In every case where there may be a doubt whether a person be a 
 principal or accessory before the fact, it may be advisable to prefer 
 
 (j) 1 Hale, 623. 2 Hawk. c. 29, s. 45. tion acts as to punishment, &c, of accesso- 
 
 Fost. 360. ries, noticed post. 
 
 (k) Fost. 362, and see 1 Hale, 625. 1 (wi) This clause is taken from the 7 Geo. 
 
 St. Tr. 314. 4, c. 64, s. 9; and 9 Geo. 4, c. 54, s. 23 (I.). 
 
 (1) See the enactments in the consolida- (n) R. v. Hughes, Bell C. C. 242. 
 
 American Note. 
 
 1 As to the trial in America of accesso- Mo. 475 ; Kerthler v. S., 10 Sm. & Marsh, 
 ries, see S. v. Taylor, 2 Bailey, 49 ; U. S. v. 192. See also May's Criminal Law, ss. 69- 
 Crane, 4 McLean, 317 ; S. v. Phillips, 24 75.
 
 chap, in.] Of Principals and Accessories. 181 
 
 the indictment under this section, as such an indictment will be suffi- 
 cient, whether it turn out on the evidence that such person was a 
 principal or accessory before the fact, as well as where it is clear that 
 he was either the one or the other, but it is uncertain which he was ; 
 although in cases of accessories after the fact they must be indicted as 
 such, and not as principals. (See R. v. Fallon, post.) 
 
 It may be well to observe, however, that there are cases in which 
 it is not clear that an indictment under this section would suffice. 
 Suppose, for instance, that the offence of the principal be local ; e. g., 
 a burglary committed in the county of Worcester, and that the acces- 
 sory is indicted in the county of Stafford, on the ground that the 
 evidence shows that the acts, by which he became accessory, were 
 done in the latter county, it may be question-able whether the acces- 
 sory could be indicted and tried under this section in that county ; for 
 it only authorizes the accessory to be indicted and tried ' as if he was 
 a principal felon,' and the principal could only be indicted and tried 
 in Worcestershire. Possibly if such an objection were taken on the 
 trial, it might be held that sec. 7 of this Act authorised the indict- 
 ment and trial in Staffordshire, on the ground that the evidence 
 showed the party to have become an accessory before the fact in that 
 county. But supposing that to be so, the same question might be 
 raised in arrest of judgment or on error, and on the face of the record 
 all that would appear would be that the prisoner was indicted and 
 tried as a principal in Staffordshire for a burglary committed in Wor- 
 cestershire ; but even here it might be held that the effect of the 24 & 
 25 Vict. c. 94, s. 1, is to make every indictment which charges a person 
 as principal contain a charge of being accessory before the fact also, 
 and consequently that there was nothing on the face of the record 
 inconsistent with the facts having proved that the prisoner was such 
 an accessory in Staffordshire. However, in any such case, it would be 
 prudent to insert a count framed under the second section. 
 
 In order to bring a case within sees. 1 and 2 of 24 & 25 Vict. c. 94, 
 a felony must have been actually committed, otherwise an inciting to 
 commit a felony is a misdemeanor only. Thus, where the prisoner 
 was indicted for the misdemeanor of soliciting and inciting a man to 
 commit a felony, but without effect ; it was held that he was rightly 
 convicted of such misdemeanor ; but that to make a conviction good 
 under the above statute, it must be shown that a felony was com- 
 mitted, and instead of the words ■ soliciting and inciting,' the words 
 of the statute should be followed, and the offence should be alleged 
 to have been done feloniously, (o) 
 
 In B. v. Chadwick, ( p) the prisoner was indicted as a principal for 
 murder by arsenic, and the jury found that he procured the arsenic, 
 and caused it to be administered by another person, but was absent 
 when it was administered ; and thereupon it was objected that the 
 11 & 12 Vict. c. 46, s. 1, did not apply to murder; but Williams, J., 
 overruled the objection ; and refused to reserve the point. And this 
 decision was clearly right ; for it has been held that a commission to 
 the ordinary to receive all clerks indicted for felony, but not for 
 
 (6) R. v. Gregory, L. R. 1 C. C. R. 77. (p) Stafford. Sum. Ass. 1850, MSS., 
 
 36 L. J. M. C. 60. " C. S. G.
 
 182 Of Principals and Accessories. [book i. 
 
 murder, gave authority to the ordinary to receive a person indicted 
 for murder ; and all the justices said that murder is felony, and if a 
 commission be made to two to enquire of all felonies, they can well 
 take indictments of murder, although a pardon of all felonies is not 
 available for one indicted of murder; for that is by statute 13 B,. 2, 
 st. 2, c. 1. (?) 
 
 As to accessories after the fact : — (r) 
 
 (24 & 25 Vict. c. 94) s. 3. ' Whosoever shall become an accessory 
 after the fact to any felony, whether the same be a felony at common 
 law or by virtue of any Act passed or to be passed, may be indicted 
 and convicted either as an accessory after the fact to the principal 
 felony together with the principal felon, or after the conviction of the 
 principal felon, or may be indicted and convicted of a substantive 
 felony whether the principal felon shall or shall not have been pre- 
 viously convicted, or shall or shall not be amenable to justice, and may 
 thereupon be punished in like manner as any accessory after the fact 
 to the same felony, if convicted as an accessory, may be punished.' (s) 
 
 Upon an indictment against a prisoner as a principal he cannot 
 be convicted under this section as an accessory after the fact. The 
 prisoner was indicted for stealing from the person ; there was no 
 evidence to prove that charge, but there was ample evidence to prove 
 that he was an accessory after the fact to the stealing from the 
 person ; it was held that he could not be convicted as such accessory 
 upon this indictment, (t) 
 
 Sec. 4. ' Every accessory after the fact to any felony (except where 
 it is otherwise specially enacted), (u) whether the same be a felony 
 at common law or by virtue of any Act passed or to be passed, shall 
 be liable, at the discretion of the Court, to be imprisoned in the com- 
 mon gaol or house of correction for any term not exceeding two years, 
 with or without hard labour, and it shall be lawful for the Court, if 
 it shall think fit, to require the offender to enter into his own recog- 
 nizance and to find sureties, both or either, for keeping the peace, in 
 addition to such punishment : Provided that no person shall be im- 
 prisoned under this clause for not finding sureties for any period 
 exceeding one year.' 
 
 As to accessories generally : — 
 
 Sec. 5. ' If any principal offender shall be in anywise convicted 
 of any felony, it shall be lawful to proceed against any accessory, 
 either before or after the fact, in the same manner as if such prin- 
 cipal felon had been attainted thereof, notwithstanding such principal 
 felon shall die, or be pardoned, or otherwise delivered before attain- 
 der ; and every such accessory shall upon conviction suffer the same 
 punishment as he would have suffered if the principal had been 
 attainted.' (v) 
 
 Sec. 6. ' Any number of accessories at different times to any felony, 
 
 (q) Anonymous, Keilw. 91, b ; and see (t) R. v. Fallon, 1 L. & C. 217. 32 
 
 2 Hale, 45. '3 Inst. 236. and Greaves' Cr. L. J. M. C. 66. 
 
 St, 20, 2nd edit. (u) See 24 and 25 Vict. c. 100, s. 67, 
 
 (?•) See the enactments in the consoli- post, p. 184. 
 
 dation Acts as to the punishment, &c, of (v) This clause is taken from the 7 Geo. 
 
 accessories, noticed post. 4, c. 64, s. 11, and 9 Geo. 4, c. 54, s. 25 (I.). 
 
 (s) This clause is taken from the 11 & 
 12 Vict. c. 46, s. 2.
 
 chap, in.] Of Principals and Accessories. 183 
 
 and any number of receivers at different times of property stolen at 
 one time, may be charged with substantive felonies in the same indict- 
 ment, and may he tried together, notwithstanding the principal felon 
 shall not be included in the same indictment, or shall not be in cus- 
 tody or amenable to justice.' (w) 
 
 Sec. 7. ' Where any felony shall have been wholly committed 
 within England or Ireland, the offence of any person who shall 
 be an accessory either before or after the fact to any such felony 
 may be dealt with, inquired of, tried, determined, and punished by 
 any court which shall have jurisdiction to try the principal felony, 
 or any felonies committed in any county or place in which the act, 
 by reason whereof such person shall have become such accessory, 
 shall have been committed : and in every other case the offence of 
 any person who shall be an accessory either before or after the fact 
 to any felony may be dealt with, inquired of, tried, determined, and 
 punished by any court which shall have jurisdiction to try the 
 principal felony or any felonies committed in any county or place in 
 which such person shall he apprehended or he in custody, whether the 
 principal felony shall have been committed on the sea or on the land, 
 or begun on the sea and completed on the land, or begun on the land 
 and completed on the sea, and whether within Her Majesty's domin- 
 ions or without, or partly within Her Majesty's dominions and partly 
 without ; provided that no person who shall be once duly tried either 
 as an accessory before or after the fact, or for a substantive felony 
 under the provisions hereinbefore contained, shall be liable to be 
 afterwards prosecuted for the same offence.' 
 
 This clause is taken from the 7 Geo. 4, c. 64, ss. 9, 10 ; 9 Geo. 4, 
 c. 54, ss. 23, 24 (I.) ; and 11 & 12 Vict. c. 46, s. 2. 
 
 Under those enactments accessories might be tried by any court 
 which had jurisdiction to try the principal, whether the principal 
 felony had been committed on the sea or on land, and whether 
 within the Queen's dominions or without, and where the principal 
 felony was committed in one county, and the act by which the 
 person became an accessory was done in another county, the accessory 
 might be tried in either. 
 
 By the earlier part of this clause, where the principal felony is 
 wholly committed in England or Ireland, the accessory may be tried 
 either in the county where the principal felony may be tried, or in 
 the county where the act by which he became an accessory was 
 done. But where the principal felony is not committed wholly in 
 England or Ireland, the accessory may be tried by any court which 
 has jurisdiction to try the principal, or in any county in which 
 the accessory may be apprehended or be in custody. The object of 
 
 (w) This clause is framed from the 14 & felled to he tried together in the absence of 
 
 15 Vict. c. 100, s. 15, and the words in the principal, where they separately became 
 
 italics inserted. The Committee of the Com- accessories, or separately received, 
 mons who sat on the 14 & 15 Vict. c. 100, The marginal note was erroneously al- 
 
 struck out those words, not perceiving that tered after the Bill went to the House of 
 
 they were the only important, words in the Lords. It began ' separate accessories,' be- 
 
 clause : for there never was any doubt that cause the clause applies only to accessories 
 
 separate accessories and receivers might be at different times. ' Several ' persons may 
 
 included in the same indictment under the become accessories at one and the same time 
 
 circumstances referred to in the clause ; the and place. C. S. G. 
 doubt was, whether they could be com-
 
 184 Of Principals and Accessories. [book i. 
 
 this latter provision is to meet cases where the principal felony may 
 have been committed, either on land or sea, out of England and Ire- 
 land ; in such cases no court had jurisdiction to try the principal 
 until he was apprehended in England or Ireland, and consequently 
 where the principal in such cases had not been apprehended, the 
 accessory would not have been triable at all under the former enact- 
 ments. The words in italics cure this defect. 
 
 By 24 & 25 Vict. c. 100, (x) s. 67, 'In the case of every felony pun- 
 ishable under this Act, every principal in the second degree, and 
 every accessory before the fact, shall be punishable in the same 
 manner as the principal in the first degree is by this Act punish- 
 able : and every accessory after the fact to any felony punishable 
 under this Act (except murder) shall be liable to be imprisoned for 
 any term not exceeding two years with or without hard labour ; and 
 every accessory after the fact to murder shall be liable, at the dis- 
 cretion of the Court, to be kept in penal servitude for life or for any 
 term not less than three years, or to be imprisoned for any term not 
 exceeding two years, with or without hard labour ; and whosoever 
 shall counsel, aid, or abet the commission of any indictable misde- 
 meanor punishable under this Act shall be liable to be proceeded 
 against, indicted, and punished as a principal offender.' 
 
 As to abettors in misdemeanors : — 
 
 By 24 & 25 Vict. c. 94, s. 8, ' Whosoever shall aid, abet, counsel, 
 or procure the commission of any misdemeanor, whether the same 
 be a misdemeanor at common law or by virtue of any Act passed or 
 to be passed, shall be liable to be tried, indicted, and punished as a 
 principal offender.' 
 
 This clause is framed from the similar clauses in the 7 & 8 Geo. 4, 
 c. 30, s. 26 ; 9 Geo. 4, c. 56, s. 33 (I.), &c, and is really only a decla- 
 ration of the common law on the subject ; by which all persons, who 
 would be accessories in felony, are principals in misdemeanor, (?/) and 
 hence it follows that a person indicted for committing a misdemeanor 
 may be convicted, if it appear that he caused it to be committed, 
 although he is absent when it is committed, (z) 
 
 As to other matters : — 
 
 Sec. 9. ' Where any person shall, within the jurisdiction of the Ad- 
 miralty of England or Ireland, become an accessory to any felony, 
 whether the same be a felony at common law or by virtue of any Act 
 passed or to be passed, and whether such felony shall be committed 
 within that jurisdiction or elsewhere, or shall be begun within that 
 jurisdiction and completed elsewhere, or shall be begun elsewhere and 
 completed within that jurisdiction, the offence of such person shall be 
 felony ; and in any indictment for any such offence the venue in the 
 margin shall be the same as if the offence had been committed in the 
 county or place in which such person shall be indicted, and his offence 
 shall be averred to have been committed " on the high seas," provided 
 that nothing herein contained shall alter or affect any of the laws 
 relating to the government of Her Majesty's land or naval forces.' 
 
 (a:) This is the Act relating to offences (c) R. v. Clayton, 1 C. & K. 128. R. w. 
 
 aganst the person. Moland, 2 M. C. C. R. 276. 
 
 (y) See ante, p. 174.
 
 ciiap. in.] Of Principals and Accessories. 185 
 
 The object of the earlier part of this clause is to remove a doubt 
 whether a person who became an accessory on the sea in the cases 
 mentioned in it, was a felon ; it may be that this was an unfounded 
 doubt, but it was thought better to prevent the question arising. The 
 7 Geo. 4, c. 64, s. 9, contained a similar euactmeut. 
 
 The latter part of the clause is framed on the 7 & 8 Vict. c. 2, and 
 provides for the form of indictment against accessories on the sea. (a) 
 
 An accessory before the fact to the crime of self-murder was not 
 triable at common law, because the principal could not be tried ; and 
 such an accessory was not triable under the 7 Geo. 4, c. 64, s. 9 (now 
 repealed), which did not make accessories triable except in cases 
 where they might have been tried before. Russell was tried on au 
 indictment which charged S. Wormsley with murdering herself with 
 arsenic, and Russell with inciting her to commit the said murder. 
 It appeared that Wormsley, who was about four months advanced in 
 pregnancy, but not quick with child, died from taking arsenic, which 
 she had received from Russell, for the purpose of procuring a mis- 
 carriage, and that she knowingly took it with intent to procure a 
 miscarriage, in the absence of Russell. It was objected that there 
 was no evidence to prove that she was felo de se ; that the 9 Geo. 4, 
 c. 31, s. 13, did not apply to a woman administering poison to herself, 
 and that assuming her to have taken arsenic knowingly, and with 
 intent to procure miscarriage, she was not guilty of any offence ; and, 
 consequently, if there were no principal there could be no accessory. 
 Secondly, that the 7 Geo. 4, c. 64, s. 9, did not apply to the case of a 
 principal who was felo de se. It was held that she was felo de se ; 
 that Russell was an accessory before the fact, but that he could not 
 be tried as an accessory under the 7 Geo. 4, c. 64, s. 9, as he could 
 not have been tried at all before that statute, which was to be con- 
 sidered as extending to those persons only, who, before the statute, 
 were triable either with or after the principal, and not to make those 
 triable who before could never have been tried, (b) 
 
 On a trial for murder, it appeared that the deceased had died 
 from the effects of corrosive sublimate taken to procure abortion, in 
 July, 1861. She had endeavoured to purchase corrosive sublimate 
 herself, but the druggists having refused to furnish it to her, she had 
 urged the prisoner to procure it, which he did with the full know- 
 ledge of the purpose to which it was to be applied ; but there was 
 ground for believing that the prisoner, in procuring the poison, had 
 acted under the influence of threats by the deceased of self-destruc- 
 tion if the means of procuring abortion were not supplied to her. 
 She was a married woman, living separately from her husband, and 
 pregnant by the prisoner. The jury expressly negatived the fact of 
 the prisoner having administered the poison to, or caused it to be 
 taken by, the deceased. They found that the prisoner procured the 
 poison, and delivered it to the deceased, with a knowledge of the 
 purpose to which she intended to apply it, and that he was, there- 
 fore, accessory before the fact of her taking poison to procure abor- 
 tion. Cockburn, C. J., thereupon, on the authority of the preceding 
 
 (a) By sec. 10, nothing in this Act con- (b) R. v. Russell, R. & M. 356. R. v. 
 
 tained shall extend to Scotland, except as Leddington, 9 C. & P. 79. Alderson, B. 
 hereinbefore otherwise expressly provided.
 
 186 Of Principals and Accessories. [book i. 
 
 case, directed the jury to return a verdict of guilty ; but it appearing 
 doubtful to him how far the ruling in that case, that if poison be 
 taken by a woman to procure abortion, and death ensues, she is felo 
 de se, could be upheld : and still more so, how far a man, accessory to 
 the misdemeanor of a woman taking poison to procure abortion, can 
 be held to be accessory to her self-murder, if, contrary to the inten- 
 tion of the parties, death should be the consequence, his Lordship 
 reserved these points : and it was held that the conviction was 
 wrong, and that there was a very marked distinction between the 
 two cases. In the one the prisoner persuaded the woman to take 
 the arsenic ; in the other the prisoner was unwilling that the woman 
 should take the poison. The facts of the case were quite consistent 
 with the supposition that he hoped and expected that she would 
 change her mind, and would not resort to it. Then the cases being 
 distinguishable, it was unnecessary to decide whether the woman was 
 felo de se. (c) 
 
 Where an indictment stated that Lowe cast away a vessel, and 
 that the prisoner incited him to commit the said felony, it was 
 objected that the indictment was not properly framed as for a sub- 
 stantive offence, under the 7 Geo. 4, c. 64, s. 9, but was in the form 
 of an indictment at common law against principal and accessory, and 
 as the principal had not been convicted, and was not on his trial, 
 the accessory could not be tried. But it was held that the descrip- 
 tion of the offence was not altered by the statute. It might have 
 been put in a different shape, but every allegation in this indictment 
 would have been included in any other, (d) So where Mills was 
 indicted for sending letters demanding money with menaces, and 
 Hansill with receiving, harbouring, &c, Mills, knowing her to have 
 committed the said felony, Erie, J., held that Hansill might be tried 
 before Mills on this indictment under the 11 & 12 Vict. c. 46, s. 2 
 (now repealed, but re-enacted by the 24 & 25 Vict. c. 94, s. 3), as that 
 clause was only intended to alter the course of trial, and not the mode 
 of describing the offence, (e) But in one case an indictment alleging 
 that a certain evil-disposed person feloniously stole, and that before 
 the said felony was done the prisoner did feloniously incite the said 
 evil-disposed person to commit the said felony, was held bad as being 
 too uncertain. (/) 
 
 Where the proceedings are against the accessory alone for receiving 
 stolen goods, the name of the principal need not be stated, (g) So 
 where the proceedings are against both principal and accessory, the 
 indictment may contain counts for a substantive felony in receiving 
 stolen goods without naming the principal, and upon such an indict- 
 
 (c) R. v. Fretwell, 1 L. & C. 161. But (d) R. v. Wallace, 2 M. C. C. 200, C. & 
 
 now by the 24 & 25 Vict. c. 100, s. 58, any M. 200. But see R. ;;. Ashmall, 9 C. & P. 
 
 woman taking poison to procure abortion is 237- 
 
 guilty of felony, which materially alters the (e) R. v. Hansill, 3 Cox, C. C. 597. 
 
 character of such cases for the future, and (f) R. v. Caspar, 2 M. C C. R. 101. 
 
 the difficulty as to the trial of the accessory (g) R. v. Jervis, 6 C. & P. 156. Tindal, 
 
 is r;ot rid nf by sec. 1 of the 24 & 25 Vict. C. J. R. v. Wheeler, 7 C. & P. 170. Cole- 
 
 c. 94. See R. v. Gaylor, 1 D. & B. 288, ante, ridge, J. R. v. Caspar, 2 M. C. C. R. 101 ; 
 
 p. 173. S. O, 9 C. & P. 289.
 
 chap, in.] Of Principals and Accessories. 187 
 
 ment the receiver may be convicted, although the person indicted as 
 principal be acquitted, (h) 
 
 A count charging a person with being accessory before the fact 
 may be joined with a count charging the same person with 1 icing 
 accessory after the fact to the same felony, and the prosecutor 
 cannot be compelled to elect upon which he will proceed, and the 
 party may be found guilty upon both, (i) A case has occurred, in 
 which a party was indicted for receiving stolen goods, and also for 
 receiving, harbouring and comforting, the felon, and the prisoner 
 was convicted. (J) 
 
 Where a count charged a prisoner with stealing certain cotton, 
 and another count charged him with receiving the property afore- 
 said, and it was proved that the prisoner had solicited a servant 
 to rob his master ; which he did, and took the cotton to the prisoner, 
 in whose possession it was afterwards found, and he stated that he 
 had got it from the servant, and the jury found a general verdict 
 of guilty ; it was held, on a case reserved, that the jury might upon 
 this evidence reasonably convict the prisoner as an accessory before 
 the fact upon the count for stealing, under sec. 1 of the 11 & 12 
 Vict. c. 46, and that there was no inconsistency in finding that he 
 was guilty of being an accessory before the fact, and that he received 
 the goods knowing them to have been stolen, (k) But where one 
 count charged the prisoner with stealing sheep, and another with 
 receiving the said sheep knowing them to have been stolen, and the 
 jury found a verdict of guilty on both counts, the Court of Queen's 
 Bench in Ireland set aside the verdict and judgment on the ground 
 that this was an inconsistent verdict. The Court assumed that the 
 counts were inserted under the 11 & 12 Vict. c. 46, s. 3, and held 
 that that statute only authorised the jury to convict either of steal- 
 ing or receiving, and not of both. (7) 
 
 (h) R. v. Pulham, 9 C. & P. 280. fectly immaterial ; but even if it were 
 Gurney, B. R. v. Austin, 7 C. & P. 796. material, a man may on the same day steal 
 Parke and Bolland, Bs. goods at one place, part with them, and re- 
 ft) R. v. Blackson, 8 C. & P. 43. Parke, ceive them again at another place. Again, 
 B., and Patteson, J., after full consideration, the 11 & 12 Vict. c. 46, s. 3, only says, 'it 
 (j) Ibid, per Parke, B. shall be lawful ' for the jury to convict either 
 (k) R. v. Hughes, Bell, C. C. 242. of stealing or receiving ; but it does not for- 
 (/) R. v. Evans, 7 Cox, C. C. 151. The bid them to convict of both. Suppose a 
 Court said that ' it might be possible that a written confession of the prisoner proved 
 man may have stolen goods, and, after dis- both offences, how can a jury on their oaths 
 posing of them, may afterwards get them acquit of either ? In point of law there never 
 into his hands knowing them to be stolen, was any objection to the insertion of several 
 and be thus guilty of stealing and receiving distinct felonies in one indictment ; it was 
 the same goods.' Now, suppose, on the trial no ground of demurrer, arrest of judgment 
 of this indictment, the facts had been as thus or error (1 Chitt. Cr. L. 253), but it was 
 stated, it seems plain that the jury ought to mere matter for the discretion of the judge 
 have found the verdict they did, and upon to put the prosecutor to elect on which 
 the finding as it stood the Court were bound charge he would proceed. The 11 & 12 Vict, 
 to presume that the evidence proved both c. 46, s. 3, had taken away that discretion 
 counts. But the Court add, ' The statements in this case, and made a prisoner triable at 
 in this record negative such a state of facts ; ' the same time for stealing and receiving, 
 and ' the unity of the offence in the ordinary and as the Act contains no prohibitory 
 language is put beyond doubt, the stealing words, the necessary consequence follows 
 and receiving are of the same chattel, laid as that the jury may convict of both if the 
 the property of the same person, on the same evidence prove both offences. If it were 
 day.' This is a plain error ; the property otherwise, they must find a false verdict 
 must be the same, and the time laid is per- either on the one or other count, and thereby
 
 188 Of Principals mid Accessories. [book i. 
 
 An indictment against an accessory should state that the principal 
 committed the offence ; and it is not sufficient merely to state, that 
 he was indicted for it. (ra) 
 
 Before the 11 & 12 Vict. c. 46, it was settled, that if a man were 
 indicted as accessory to two or more persons, and the jury found him 
 accessory to one, it was a good verdict, and judgment might pass 
 upon him. (n) 
 
 If A. be indicted as principal, and B. as accessory, and both be 
 acquitted, or if B. only be acquitted, yet B. may be indicted as prin- 
 cipal in the same offence, and his former acquittal is no bar. (o) So 
 if A. were indicted as principal and acquitted, he might formerly have 
 been afterwards indicted as accessory before the fact. (j>) But now 
 an acquittal as principal is clearly a bar to an indictment for being 
 accessory before the fact ; for on an indictment as principal an accessory 
 before the fact may be convicted under the 24 & 25 Vict. c. 94, s. 1. 
 So if a man be indicted as principal and acquitted, he may be 
 indicted as accessory after the fact ; and so if he be indicted as 
 accessory before the fact and acquitted, he may be indicted as acces- 
 sory after the fact, (q) The late statute, as we have seen, enacts, 
 that no person who shall be once duly tried for any offence of being 
 an accessory shall be liable to be again indicted or tried for the same 
 offence, (r) 
 
 The indictment charged all four prisoners with feloniously inciting 
 a certain evil-disposed person to forge a will ; the evidence did not 
 show any joint act done by the prisoners, but only separate and inde- 
 pendent acts at separate and distinct times and places. After all 
 the evidence on the part of the prosecution had been given, one of 
 the prisoners pleaded guilty ; it was thereupon urged that all the 
 other prisoners were entitled to an acquittal ; that the indictment 
 charged a joint inciting, and there being no evidence of any joint 
 acting, and one prisoner being convicted, the others could not be con- 
 victed jointly with her ; but Williams, J., overruled the objection, (s) 
 
 Where the principal and accessory are tried together upon the same 
 indictment, there is no doubt but that the accessory may enter into the 
 full defence of the principal, and avail himself of every matter of fact 
 and every point of law tending to his acquittal ; for the accessory is in 
 this case to be considered as particeps in lite ; and this sort of defence 
 necessarily and directly tends to his own acquittal. And where the 
 accessory is brought to Ins trial after the conviction of the principal, 
 and it comes out in evidence upon the trial of the accessory that the 
 offence of which the principal was convicted did not amount to felony 
 in him, or not to that species of felony with which he was charged, the 
 
 save the prisoner from the punishment of one Thomas Gordon, 1 Leach, 515; S. C, 1 
 
 of the two offences he had committed See East, P. C. 35. 
 
 post. C. S. G. (p) R. v. Birchenough, R. & M. 477, over- 
 
 (m) Lord Sanchar's case, 9 Co. 117 a. ruling 1 Hale, 626 ; 2 Hale, 244, ante, p. 48. 
 
 R. v. Read, 1 Cox, C. C. 65. R. v. Butter- (q) 1 Hale, 626. 
 
 field, 1 Cox, C. C. 39. (r) 24 & 25 Vict. c. 94, s. 7, ante, p. 183, 
 
 (n) Fost. 361, 9 Co. 119. 1 Hale, 624. as to plea of autrefois acquit, see ante, p. 38. 
 
 2 Hawk. P. C. c. 29, s. 46. Plowd. 98, 99. (s) R. v. Barber, 1 C. & K. 442. R. v. 
 
 Fost. 361. Messingham, R. & M. 257. 
 
 (o) 1 Hale, 625. R. v. Winifred &
 
 chap, in.] Of Principals and Accessories. 189 
 
 accessory may avail himself of this, and ought to he acquitted, (t) For 
 though it is not necessary upon such trial on the part of the prosecu- 
 tion to enter into a detail of the evidence on which the conviction was 
 founded, and the record of the conviction is deemed sufficient evidence 
 against the accessory to put him upon his defence ; (u) yet the pre- 
 sumption raised by the record that everything in the former proceeding 
 was rightly and properly transacted must, it is conceived, give way to 
 facts manifestly and clearly proved ; and that as against the accessory 
 the conviction of the principal will not be conclusive, being as to him res 
 inter alios acta, (v) This was the opinion of Foster, J., and upon this 
 opinion the Court, in a case at the Old Bailey, permitted the counsel 
 for an accessory to controvert the propriety of the conviction of the 
 principal by viva voce testimony, and to show that the act done by the 
 principal did not amount to & felony, and was only a oreach of trust, (w) 
 And in a later case, in the same Court, it was also admitted that the 
 record of the conviction of the principal was not -conclusive evidence 
 of the felony against the accessory, and that he has a right to contro- 
 vert the propriety of such conviction, (x) 
 
 It seems that the accessory may insist upon the innocence of the 
 principal. Foster, J., says, ' If it shall manifestly appear, in the course 
 of the accessory's trial, that in point of fact the principal was innocent, 
 common justice seems to require that the accessory should be acquitted. 
 A. is convicted upon circumstantial evidence, strong as that sort of 
 evidence can be, of the murder of B. ; C. is afterwards indicted as 
 accessory to this murder ; and it comes out upon the trial, by incon- 
 testable evidence, that B. is still living (Lord Hale somewhere mentions 
 a case of this kind). Is C. to be convicted or acquitted ? The case is 
 too plain to admit of a doubt. Or, suppose B. to have been in fact 
 murdered, and that it should come out in evidence, to the satisfaction 
 of the Court and jury, that the witnesses against A. were mistaken in 
 his person (a case of this kind I have known), and that A. was not, 
 nor could possibly have been, present at the murder.' (a) 
 
 Upon an indictment against an accessory, a confession by the prin- 
 cipal is not admissible to prove the guilt of the principal; it must 
 be proved aliunde, especially if the principal be alive, and could be 
 called as a witness ; and it seems that even the conviction of the 
 principal would not be admissible to prove the guilt of the principal. 
 The prisoner was indicted for receiving sixty sovereigns, which had 
 been stolen by H. Rich. A confession by H. Rich, made before a 
 magistrate in the presence of the prisoner, in which she stated various 
 facts implicating the prisoner, was tendered in evidence. Patteson, 
 J., refused to receive anything that was said by H. Rich, respecting 
 the prisoner, but admitted what she said respecting herself only. 
 
 (t) Fost. 365. R. v. M'Daniel and (a) Fost. 367, 368 ; and see 3 Esp. R. 
 
 others, 19 Sta. Tri. 806. 134 (in the case of Cook v. Field), where it 
 
 (u) But see R. v. Turner, post. was stated by Bearcroft, and assented to by 
 
 (v) Fost. 365. Lord Kenyon, that where the principal has 
 
 (w) Smith's case, 1 Leach, 288. been convicted, it is nevertheless on the trial 
 
 (x) Prosser's case (mentioned in a note to of the accessory competent to the defendant 
 
 Smith's case, 1 Leach, 290). Cor. Gould, to prove the principal innocent. And see 
 
 J. R. v. Blick, 4 C. & P. 377. S. P. Bosan- R. v. M'Daniel and others, 19 St. Tri. 806. 
 
 quet, J. And see R. v. M'Daniel and others, 
 
 19 St. Tri. 806.
 
 190 Of Principals and Accessories. [book i. 
 
 H. Rich had been found guilty on another indictment, but had not 
 been sentenced, and might have been called as a witness. The judges 
 (except Lord Lyndhurst, C. B., and Taunton, J.) (b) were of opinion 
 that Rich's confession was no evidence against the prisoner ; and many 
 of them appeared to think that had Rich been convicted, and the 
 indictment against the prisoner stated not her conviction, but her 
 guilt, the conviction would not have been any evidence of her guilt, 
 which must have been proved by other means, (c) And upon the 
 authority of this case, where an accessory before the fact to a murder 
 was tried after the principal had been convicted and executed, Parke, 
 B., ordered the proceedings to be conducted in the same manner as if 
 the principal was then on his trial, (d) Where two persons were 
 indicted together, one for stealing and the other for receiving, and the 
 principal pleaded guilty, Wood, B., refused to allow the plea of guilty 
 to establish the fact of the stealing by the principal as against the 
 receiver, (e) 
 
 The prisoner was indicted as an accessory after the fact to one Mills, 
 who was charged with sending letters demanding money with menaces, 
 and Erie, J., held that these letters were admissible in evidence against 
 the accessory, for it was necessary to prove a demand of the money, and 
 these letters constituted the demand. They were, therefore, evidence 
 of acts done. (/) Where Read was indicted as accessory before the 
 fact to Simpson, and conversations with Simpson in the absence of Read 
 were offered in evidence, Maule, J., refused to admit them, (g) And 
 where, on an indictment against Hawkey and Pym for murder, Pym 
 was tried first, and Hawkey was alleged to have fired the fatal shot in 
 a duel, it was held that it might be proved that Hawkey on the morn- 
 ing before the duel had said, ' I will shoot him as I would a partridge.' 
 Erie, J., saying, ' This statement is an act indicating malice afore- 
 thought in Hawkey, and that is a fact which the jury have to ascer- 
 tain. The intentions of a person can only be inferred from external 
 manifestations, and words are some of the most usual and best evi- 
 dence of intention. It is not a declaration after the act done narrating 
 the past, but it shows the mind of the party.' (h) In the same case, 
 Erie, J., held that what Hawkey said after the duel relating to what 
 passed at the spot where the duel took place was not admissible. 
 
 As to harbouring thieves, &c., in public-houses and brothels, see 
 34 & 35 Vict. c. 112, ss. 10-11, Prevention of Crimes Act (1871), and 
 39 & 40 Vict. c. 20 § 5. 
 
 Punishment of principals in the second degree and accessories under 
 the Consolidation Acts. — By the 24 & 25 Vict. c. 96 (the Larceny 
 Consolidation Act), s. 98, in case of every felony punishable under 
 this Act, every principal in the second degree, and every accessory 
 before the fact, shall be punishable in the same manner as the 
 principal in the first degree is by this Act punishable ; and every 
 accessory after the fact to any felony punishable under this Act 
 (except only a receiver of stolen property) shall, on conviction, be 
 
 (J) Who were absent. (e) Anonymous, cited in R. v. Turner, 
 
 (c) R. v. Turner, R. & M. 347. 1 Lewin, supra. 
 
 119. (/) R. v. Hansill, 3 Cox, C. C. 597. 
 
 (d) Ratcliffe's case, 1 Lewin, 121. (a) R. v. Read, 1 Cox, C. C. 65. 
 
 (h) R. v. Pym, 1 Cox, C. C. 339.
 
 chap, in.] Of Principals and Accessories. 191 
 
 liable, at the discretion of the court, to be imprisoned for any term 
 not exceeding two years, with or without hard labour, and with or 
 without solitary confinement; and every person who shall aid, abet, 
 counsel, or procure the commission of any misdemeanor punishable 
 under this Act shall be liable to be indicted and punished as a prin- 
 cipal offender. 
 
 Each of the Consolidation Acts, 24 & 25 Vict. c. 97 (Malicious 
 Injuries to Property Act), s. 56 ; c. 98 (Forgery Act), s. 49, contains 
 the following clause : — 
 
 ' In the case of every felony punishable under this Act, every prin- 
 cipal in the second degree, and every accessory before the fact, shall 
 be punishable in the same manner as the principal in the first degree 
 is by this Act punishable ; and every accessory after the fact to any 
 felony punishable under this Act shall, on conviction, be liable, at the 
 discretion of the court, to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement ; and every person who shall aid, abet, counsel, or pro- 
 cure the commission of any misdemeanor punishable under this Act, 
 shall be liable to be proceeded against, indicted, and punished as a 
 principal offender.' 
 
 As to the punishment of principals in the second degree and acces- 
 sories under the Act relating to coin, see 24 & 25 Vict. c. 99, s. 35, 
 post — under the 24 & 25 Vict. c. 100 (the Offences against the Per- 
 sons Act), sec. 67, ante, p. 184 — under the Act relating to piracy, 
 see 7 W. 4 & 1 Vict. c. 88, s. 4, post — under the Act relating to 
 the Post Office, see 7 W. 4 & 1 Vict. c. 36, s. 35 — under the Explosive 
 Substances Act, see 46 Vict. c. 3, s. 7, post.
 
 CHAPTER THE FOURTH. 
 
 OF INDICTABLE OFFENCES. 
 
 Offences which may be made the subject of indictment, and are 
 below the crime of treason, may be divided into two classes, felonies 
 and misdemeanors. 
 
 Felony defined. 1 — The term felony appears to have been long used 
 to signify the degree or class of crime committed, rather than the 
 penal consequence of forfeiture occasioned by the crime, according to 
 its original signification. The proper definition of it, however, as 
 stated by an excellent writer, recurs to the subject of forfeiture, and 
 describes the word as signifying — an offence which occasions a total 
 forfeiture («) of either lands or goods, or both, at the common law: 
 and to which capital or other punishment may he superadded accor- 
 ding to the degree of guilt, (b) Capital punishment does by no means 
 enter into the true definition of felony : but the idea of felony is 
 so generally connected with that of capital punishment, that it is 
 hard to separate them ; and to this usage the interpretations of the 
 law have long conformed. Therefore, formerly, if a statute made any 
 new offence felony, the law implied that it should be punished with 
 death as well as with forfeiture, unless the offender prayed the benefit 
 of clergy, which all felons were entitled once to have, unless the same 
 was expressly taken away by statute, (c) 
 
 What words in a statute create a felony. — With regard to felonies 
 created by statute, it seems clear that not only those crimes which are 
 made felonies in express words, but also all those which are decreed 
 to have or undergo judgment of life and member by any statute, 
 become felonies thereby, whether the word 'felony ' be omitted or 
 mentioned. (cT) And where a statute declares that the offender shall, 
 
 (a) This forfeiture is now abolished, 33 the word felony, from feah or fee, the fief or 
 & 34 Vict. c. 23, noticed ante, p. 108. estate, and Ion, the price or value ; and 
 
 (b) 4 Blac. Com. 95, and see 1 Hawk, ascribing to it the meaning of pretium feudi, 
 c. 25, s. 1. ' The higher crimes, rape, rob- see Spelm. Gloss. Felon, 4 Blac. Com. 95. 
 bery, murder, arson, &c., were called felony, (c) 4 Blac. Com. 98. R. v. Johnson, 3 
 and being interpreted want of fidelity to his M. & S. 549. 
 
 lord made the vassal lose his fief.' 2 Hume, (d) 1 Hale, 703. 1 Hawk. P. C. c. 40, 
 
 App. ii. p. 129. As to the derivation of s. 2. R. v. Home, 4 Cox, C. C. 263. 
 
 American Note. 
 
 1 As to felonies in America, see Weaver v. crimes as "felony " and "misdemeanor," and 
 
 C. , 5 Casey, 445; Wilson v. S., 1 Wis. 184 ; in other States different rules of construction 
 
 S. v. Decon, 65 N. C. 572. It seems that dif- of statutes upon this matter appear to pre- 
 
 ferent States in America have different rules, vail. See Bishop, i. s. 618 et scq. May's 
 
 In some States there is no such division of Criminal Law, s. 10.
 
 chap, iv.] Of Indictable Offences. 193 
 
 under the particular circumstances, be deemed to have feloniously com- 
 mitted the act, it makes the offence a felony, and imposes all the 
 common and ordinary consequences attending a felony, (c) So where 
 a statute says that an offence, previously a misdemeanor, ' shall be 
 deemed and construed to be a felony,' instead of declaring it to lie a 
 felony in distinct and positive terms, the offence is thereby made a 
 felony. (/) An enactment that an offence shall be felony, which was 
 felony at common law, does not create a new offence. (<j) An offence 
 shall never be made felony by the construction of any doubtful and 
 ambiguous words of a statute ; and therefore, if it be prohibited under 
 ' pain of forfeiting all that a man has,' or of ' forfeiting body and 
 goods,' or of being ' at the king's will for body, land, and goods,' it 
 shall amount to no more than a high misdemeanor, (h) And though 
 a statute make the doing of an act felonious, yet if a subsequent 
 statute make it penal only, the latter statute is considered as a virtual 
 repeal of the former, so far as relates to the punishment of the 
 offence, (i) Where therefore a statute made an offence punishable 
 with death and a subsequent statute imposed a forfeiture of twenty 
 pounds for the same offence when first committed, recoverable before 
 justices of the peace, and made the second offence felony, the latter 
 statute was held to be a virtual repeal of the former. (&) If also a 
 later statute expressly alters the quality of an offence by making it 
 a misdemeanor instead of a felony, the offence cannot be prosecuted 
 under a former statute, and the same consequence follows from alter- 
 ing the procedure and the punishment. (7) 
 
 And where a statute makes a second offence felony, or subject 
 to a heavier punishment than the first, it is always implied that such 
 second offence ought to be committed after a conviction for the first ; 
 from whence it follows, that if it be not so laid in the indictment, 
 it shall be punished but as the first offence : for the gentler method 
 shall first be tried, which perhaps may prove effectual, (m) Where 
 a statute makes an offence felony which was before only a misde- 
 meanor, an indictment would not lie for it as a misdemeanor, (n) 
 
 Misdemeanors defined. — The word misdemeanor, in its usual ac- 
 ceptation, is applied to all those crimes and offences for which the 
 law has not provided a particular name ; and they may be punished, 
 according to the degree of the offence, by fine or imprisonment, or 
 both, (o) A misdemeanor is, in truth, any crime less than a felony ; 
 and the word is generally used in contradistinction to felony ; mis- 
 demeanors comprehending all indictable offences which do not amount 
 
 (c) By Bayley, J., in Johnson's case, (/) Michell v. Brown, 2 E. & E. 267, and 
 
 3 M. & S. 556. 1 see R. v. Cator, 4 Burr. R. 2026. 
 
 (/) R. v. Salomons. R. & M. 292, over- (m) 1 Hawk. P. C. c. 40, s. 4. 
 
 ruling R. v. Cale, R. & M. 11. \n) R. v. Cross, 1 Ld. Raym. 711, 3 
 
 (g) Per Patteson, J., R. v. Williams, 7 Salk. 193. See R. v. Gregory, L. R. 1 C. 
 
 Q. B. 253. C. R. 77 ; but it must be clear that the 
 
 (//) 1 Hawk. P. C. c. 40, s. 3. same offence is intended. 
 
 (i) 1 Hawk. P. C. c. 40, s. 5. (o) 3 Burn. Just., tit. Misdemeanor, cit- 
 
 (k) R. v. Davis, 1 Leach, 271. ing Barlow's Justice, tit. Misdemeanor. 
 
 American Note. 
 
 1 It would seem that the word ' felon- low, 4 Mass. 439. See Mead v. Boston, 3 
 iously ' in a statute in America will not of Cush. 404. 
 itself make the crime a felony. C. v. Bar- 
 
 VOL. I. — 13
 
 194 Of Indictable Offences. [book i. 
 
 to felony, as perjury, battery, libels, conspiracies, and public nui- 
 sances, (p) Misdemeanors have been sometimes termed misprisions : 
 indeed, the word misprision, in its larger sense, is used to signify 
 every considerable misdemeanor which has not a certain name given 
 to it in the law ; and it is said that a misprision is contained in every 
 treason or felony whatsoever, and that one who is guilty of felony, 
 or treason may be proceeded against for a misprision only, if the 
 king please, (q) But generally misprision of felony is taken for 
 a concealment of felony, or a procuring the concealment thereof, 
 whether it be felony by the common law, or by statute ; (r) and 
 silently to observe the commission of a felony, without using any endea- 
 vours to apprehend the offender, is a misprision ; a man being bound 
 to discover the crime of another to a magistrate with all possible 
 expedition, (s) If this offence were accompanied with some degree 
 of maintenance given to the felon, the party committing it might be 
 liable as an accessory after the fact, (t) 
 
 indictable offences. 1 — It is clear that all felonies, and all kinds of 
 inferior crimes of a public nature, as misprisions, and all other con- 
 tempts, all disturbances of the peace, oppressions, misbehaviour by public 
 officers, and all other misdemeanors whatsover of a public evil example 
 against the common law, may be indicted, (u) It has recently been 
 held that an indictment will always lie for contempt of court, (v) but it 
 seems doubtful whether every contempt is indictable. In an early case, 
 Holt, C. J., said, ' If a witness be insolent we may commit him for the 
 immediate contempt or bind him to his good behaviour, but we cannot 
 indict him.' (w) It seems, however, to be an established principle, that 
 whatever openly outrages decency and is injurious to public morals, is a 
 misdemeanor at common law. (x) Thus the exposure of a man's person 
 
 (p) 4 Blac. Com. 5, note 2. 3 Burn. (v) R. v. Judge of Brompton County Court 
 
 Just. tit. Misdemeanor. (1893), 2 Q. B. 195. As to what conduct 
 
 (q) 1 Hawk. c. 20, s. 2, and c. 50, ss. 1, amounts to contempt, see In re Bahamas 
 
 2. Burn. Just, tit. Felony. (1893), A. C. 138. 
 
 (r) 1 Hawk. P. C. c. 59, s. 2. Post, (w) R. v. Rogers, 7 Mod. 28. See R. v. 
 
 Book II. Chap. xiii. Nun, 10 Mod. 186. 
 
 (s) 3 Inst. 140. 1 Hale, 371-375. (x) Blac. Com. 65 (n.), 13th edit. 1 
 
 (t) 1 Hawk. P. C. c. 59, s. 6. The con- Hawk. P. C. c. 5, s. 4. 1 East, P. C. c. 1, 
 
 cealment of treasure trove is misprision of s. 1, and see R. v. Sir Charles Sedley, Sid. 168. 
 
 felony. 4 Blac. Com. 121; 3 Inst. 133. R. 1 Keb. 620, and R. v. Crunden, 2 Campb. 
 
 v. Thomas, vol. ii. 89. Cases of men indecently exposing their 
 
 (k) 2 Hawk. P. C. c. 25, s. 4. As to naked persons, 
 misbehaviour by public officers, see post. 
 
 American Xote. 
 
 1 In America, whatever amounts to a derson's case, 8 Gratt. 708 ; C. v. Taylor, 5 
 
 public wrong is indictable. See R. v. Teis- Binn. 281; selling unwholesome meat, Good- 
 
 cher, 1 Dall. 335. As to offences by pub- rich v. P., 3 Parker, C. R. 622; disobeying 
 
 lie officers, see S. v. Williams, 12 Ired. an order of legislature, Keller v. S., 11 Md. 
 
 172; S. v. Buxton, 2 Swan, 57. Among 525; Moony. S., 9 Yer. 353; misconduct by 
 
 many acts which have been held to be justices of the peace, Wickersham v. P., 1 
 
 indictable at common law in America, are Scam. 123; S. v. Johnson, 1 Brev. 155; soli- 
 
 the exhibition of obscene pictures, C. v. citing a witness not to give evidence, S. v. 
 
 Sharpless, 2 Serg. & R. 91; uttering obscene Keyes, 8 Vt. 57; S. v. Carpenter, 20 
 
 words, Bell v. S., 1 Swan, 42; casting a Vt! 9; challenging to fight a duel, C. v. 
 
 corpse into a river, Kanavan's case, 1 Greenl. Tibbs, 1 Dana, 524. But private injuries 
 
 226: repeated drunkenness, Hutchinson v. are not indictable. See Smith v. C, 4 P. F. 
 
 S., 5 Humph. 142 ; throwing a carcase into a Smith, 209 (soliciting to commit adultery); 
 
 well, S. v. Bachman, 8 N. H. 203; keeping S. v. Wheeler, 3 Vt. 344; lilies v. Knight, 
 
 a dangerous amount of gunpowder, P. v. 4 Tex. 312; P. v. Smith, 5 Cowan, 258 ; 
 
 Sands, 1 Johns. 78; terrifying women, Hen- C. v. Warren, 6 Mass. 72.
 
 CHAP. IV.] 
 
 Of Indictable Offences. 
 
 195 
 
 in a public place is indictable, (y) Also it seems to be a good general 
 ground that wherever a statute prohibits a matter of public grievance 
 to the liberties and security of a subject, or commands a matter of 
 public convenience, as the repairing of the common streets of a town, 
 an offender against such statute is punishable not only at the suit 
 of the party aggrieved, but also by way of indictment for his con- 
 tempt of the statute, unless such method of proceeding do manifestly 
 appear to be excluded by it. (z) But no injuries of a private nature 
 .are indictable, unless they in some way concern the king, (a) 
 
 Attempts to commit crimes. 1 — So long as an act rests in bare inten- 
 tion, it is not punishable : but immediately when an act is done, the law 
 judges not only of the act done, but of the intent with which it is 
 done ; and if accompanied with an unlawful and malicious intent, 
 though the act itself would otherwise have been innocent, the intent 
 being criminal, the act becomes criminal and punishable, (b) There- 
 fore an attempt to commit a felony is, in many cases, a misdemeanor, (c) 
 
 (y) R. v. Holmes, Dears. C. C. R. 207, 
 
 and other cases, post, Nuisance. 
 
 (z) 2 Hawk. P. C. c. 25, s. 4. and see 
 lHawk. r. C. c. 22, s. 5. 2 Hawk. P. C. 
 c. 25 s. 4. 
 
 (a) 2 Hawk. P. C. c. 25, s. 4. R. v. 
 Richards, 8 T. R. 637. This distinction is 
 stated also to have been taken in R. v. Bem- 
 bridge & Powell (cited in R. v. Southerton, 
 6 East, 136), who were indicted for enabling 
 persons to pass their accounts with the pay- 
 office in such a way as to enable them to 
 •defraud the Government. It was objected, 
 that this was only a private matter of ac- 
 count, and not indictable : but the Court 
 held otherwise, as it related to the public 
 revenue. 
 
 (b) Per Lord Mansfield, C. J., in Scho- 
 field's case, Cald. 397. The ancient writers 
 in treating of felonious homicide, considered 
 the felonious intention in the same light in 
 point of guilt as homicide itself. Voluntas 
 reputabatw pro facto; a rule which has long 
 been laid aside as too rigorous in the case of 
 common persons, though retained in the 
 statute of Treasons, 25 Ed. 3, st. 5, c. 2. 
 But when the rule prevailed, it was neces- 
 sary that the intention should be manifested 
 by plain facts, not by bare words of any 
 kind. Haic voluntas non intellecta fuit de 
 voluntate nudis verbis aut scriptis propalata, 
 
 sed mundo manifestata fuit per' apertum 
 factum. 3 Inst. 5. Fost. 193. See as to 
 Attempts, ante, p. 63. 
 
 (c) Higgins's case, 2 East, R. 21. I!, v. 
 Kinnersley & Moore, 1 Str. 196. 1 Hawk. 
 P. C. c. 25, s. 3. The question of intent is 
 one which is very liable to be misunder- 
 stood. In order to constitute an attempt 
 there must be an act done towards the com- 
 mission of something prohibited by the law, 
 and it must be an act intentionally done. 
 There are, however, many cases in which by 
 statute a certain act is made a felony if done 
 with a certain intent, but if without that 
 intent it is a misdemeanor. Thus it is a 
 felony to wound with intent to do grievous 
 bodily harm, and it is a misdemeanor to in- 
 flict grievous bodily harm. If a man in a 
 sudden passion struck at another with a 
 knife, and his hand was arrested, it would 
 be an attempt to inflict grievous bodily harm, 
 and yet there might be no intent to inflict 
 grievous bodily harm, but the intent might 
 be to prevent apprehension or otherwise. 
 There is in short such an offence as at- 
 tempting to wound with intent to do griev- 
 ous bodily harm, and another offence of 
 attempting to inflict grievous bodily harm 
 without that particular intent. So also 
 by statute a felony is committed by any 
 one who throws a stone upon a railway 
 
 American Note. 
 
 * See S. v. Swaits, 8 Ind. 524 ; S. v. 
 Stanton, 37 Conn. 421 ; S. v. Ruhl, 8 Clarke, 
 447; Miller v. P., 2 Scam. 235; Sutton v. 
 S., 9 Ohio, 133. It would seem that the 
 law in America may be thus stated : An 
 attempt is an intent to do a particular 
 criminal thing with an act towards it fall- 
 ing short of the thing intended. A man 
 is not guilty of an attempt where the 
 complete doing of all that is meant would 
 not constitute the substantive crime. See 
 
 Bishop, i. ss. 728, 747. Mr. Bishop further 
 remarks, ' As a man will not in fact at- 
 tempt, so neither will the law treat him as 
 attempting, what he knows he cannot do. 
 And since all are conclusively presumed to 
 know the law, no one can legally intend 
 what is legally impossible; for example, a 
 boy too young to commit a rape cannot, in 
 legal contemplation, be guilty of an attempt 
 to do so.' Bishop, i. s. 753. See also May's 
 Criminal Law, s. 18.
 
 196 
 
 Of Indictable Offences. 
 
 [book 
 
 Thus abandoning a child without food with intent that it may die, is 
 indictable, (d) and an attempt to commit even a misdemeanor has 
 been decided in many cases to be itself a misdemeanor, (e) Thus if 
 a party makes a false oath before a surrogate to procure a marriage 
 license, that is an act done and a misdemeanor. (f) And the mere 
 soliciting another to commit a felony is a sufficient act or attempt to 
 constitute the misdemeanor. Thus, to solicit a servant to steal his 
 master's goods is a misdemeanor, though it be not charged in the 
 indictment that the servant stole the goods, nor that any other act 
 was done except the soliciting and inciting, (g) It was held not to 
 be necessary, in order to show that this was only a misdemeanor, to 
 negative the commission of the felony ; as none of the precedents of 
 indictments for attempts to commit rape or robbery contain any such 
 negative averment : but it is left to the defendant to show, if he 
 please, that the misdemeanor was merged in the greater offence. 
 But a person cannot be guilty of inciting another to commit a felony 
 unless the party incited knows that the act intended is a felony. (A) 
 And it has been held, that the completion of an act, criminal in itself, 
 is not necessary to constitute criminality, (i) And the general rule 
 is, that ' an attempt to commit a misdemeanor is a misdemeanor, 
 whether the offence is created by statute, or was an offence at common 
 law.' (j) 
 
 But an act is not indictable as an attempt to commit an offence, 
 unless it is an act directly approximating to the commission of that 
 
 line with intent to obstruct an engine, 
 and a person might be found guilty of at- 
 tempting to commit that felony. But \>y 
 the same statute a misdemeanor is commit- 
 ted by any one who obstructs an engine, 
 and a person might be found guilty of at- 
 tempting to obstruct an engine, although he 
 had no intent to obstruct it; but if he has 
 attempted to do an act which would end if 
 uninterfered with in an offence within the 
 section, he has committed an attempt to 
 obstruct, and his attempt involves no doubt 
 an intentional act, but it is not a felonious 
 ' intent to obstruct ' within the meaning of 
 the felony-section, but an implied intent to 
 do what is forbidden by the misdemeanor 
 section. And see 1 Hawk. P. C. c. 55. 
 Some boys were indicted at Derby March 
 Assizes, 1875, for throwing the coping-stone 
 off a bridge upon a railway, with intent to 
 obstruct an engine. They were only ' lark- 
 ing,' and the jury negatived the 'intent to 
 obstruct.' They were also indicted for ob- 
 structing, but as it happened the stone fell 
 so as not to obstruct the line, the learned 
 counsel for the prosecution submitted that 
 they might be found guilty of attempting 
 to obstruct ; but the learned commissioner 
 thought that as the jury had negatived the 
 intent to obstruct, they could not be found 
 guilty of the attempt. But it is submitted 
 that if the jury thought the prisoners wil- 
 fully tried to throw the stone upon the line, 
 they might have been found guilty of the 
 
 attempt, as the probable consequence of 
 throwing the stone on the line would be the 
 obstruction of the engine. See R. v. Hol- 
 royd, post. MSS. H. S. 
 
 (d) R. v. Renshaw, 2 Cox, C. C. 285. 
 
 (c) Per Grose, J., in Higgins's case, 2 
 East, R. 8; and see R. v. Phillips, 6 East, 
 464, where an endeavour to provoke an- 
 other to commit the misdemeanor of send- 
 ing a challenge to fight was held to be an 
 indictable misdemeanor. And by Law- 
 rence, J. , in Higgins's case, ' All such acts or 
 attempts as tend to the prejudice of the com- 
 munity are indictable.' 
 
 (/) R. v. Chapman, 1 Den. C. C. 432. 
 2 C. & K. 857. 
 
 (g) Higgins's case, 2 East, R. 5. 
 
 (h) R. v. Welham, 1 Cox, C. C. 192. 
 Parke B., and Patteson, J. tied qzicere, for 
 how can the guilt of the inciter depend on 
 the state of mind of the incited ? The in- 
 citing and the intention of the inciter con- 
 stitute the offence. C. S. G. An attempt 
 to incite a boy to commit a felony by sending 
 him a letter which he did not read has been 
 held to be an indictable misdemeanor. R. 
 v. Ransford, 13 Cox, C. C. 9. 
 
 0') By Lord Mansfield, in R. v. Scho- 
 field, Cald. 400. 
 
 (j) Per Parke, B., ibid. R. v. Chapman, 
 1 Den. C. C. 432. 2 C. & K. 857. R. v. 
 Butler, 6 C. & P. 368. Patteson, J., R. v. 
 Roderick, 7 C. & P. 795. R. v. Cartwright, 
 East. T. 1806, Russ. & Ry. 107.
 
 chap, iv.] Of Indictable Offences. 197 
 
 offence, (k) In many cases, however, acts in furtherance of a crimi- 
 nal purpose may be sufficiently proximate to an offence, and may 
 sufficiently show a criminal intent to support an indictment for a 
 misdemeanor, although they may not be sufficiently proximate to the 
 offence to support an indictment for an attempt to commit it ; as 
 where a prisoner procures dies for the purpose of making counterfeit 
 foreign coin, (I) or where a person gives poison to another, and en- 
 deavours to procure that person to administer it. (m) 
 
 Upon the same principles some earlier cases appear to have pro- 
 ceeded. Thus, it was held indictable to attempt to bribe a cabinet 
 minister and a member of the privy council to give the defendant an 
 office in the colonies, (n) And an information was granted against 
 a man for promising money to a member of a . corporation, to induce 
 him to vote for the election of a mayor ; (o) an information also 
 appears to have been exhibited against a person for attempting by 
 bribery to influence a juryman in giving his verdict. (j>) And it is 
 laid down generally that if a party offers a bribe to a judge, meaning 
 to corrupt him in the cause depending before him, and the judge 
 takes it not, yet this is an offence punishable by law in the party 
 that offers it. (q) And an attempt to suborn a person to commit 
 perjury, upon a reference to the judges, was unanimously holden by 
 them to be a misdemeanor, (r) All who endeavour to stifle the truth 
 and prevent the due execution of justice are highly punishable. 
 Public cheats which are levelled against the public justice of the king- 
 dom are indictable at common law (s) The defendant was tried and 
 convicted upon a count of an indictment alleging in substance : That 
 by the terms of a contract for the purchase of a cargo of wheat, to be 
 shipped by the sellers from a port in the Black Sea to the buyer at 
 the port of Bristol, it was provided that any dispute arising under the 
 contract should be referred to two arbitrators, whose award should 
 be final and conclusive, and might upon the application of either 
 contracting party be made a rule of the court in England ; that the 
 defendant was appointed by the sellers to take samples of the cargo 
 upon the arrival of the ship at Bristol ; that such samples were 
 then taken and placed in bags sealed with the seals of the buyer and 
 seller of the cargo, in accordance with the custom of merchants at 
 the port, and for the purpose of being used as evidence before the 
 
 (k) R. v. Eagleton, Dears. C. C. 515. R. (p) Young's case, cited in Higgins's case, 
 
 v. Roberts, ibid. 539. 2 East, R. 14, 16. 
 
 (I) R. v. Roberts, supra. (q) 3 I ns t. 147 ; and see R. v. Cassano, 
 
 (m) R. v. Williams, mentioned in R. v. 5 Esp. 231, an information for attempting to 
 
 Eagleton, Dears. C. C. 547. 1 bribe an officer of the Customs. 
 
 (n) Vaughan's case, 4 Burr. 2494 ; and (r) Anon, before Adams, B., at Shrews- 
 see R. v. Pollman and others, 2 Campb. bury, cited in Schofield's case, Cald. 400, 
 229, where a conspiracy to obtain money, and in Higgins's case, 2 East, R. 14, 17, 22. 
 by procuring from the Lords of the Trea- This case is probably the same as R. v. 
 sury the appointment of a person to an Edwards, MS. Sum. tit. Perjury, 
 office in the Customs, was held to be a mis- (s) 1 Hawk. P. C. c. 21, s. 15. East. P. 
 demeanor at common law. C. c. 18, s. 4. 
 
 (0) Plympton's case, 2 Lord Ravm. 
 1377. 
 
 American Note. 
 
 1 In America it seems that the remoteness does not affect the question. Bishop, i. 
 of the act from that intended to be done s. 435 and ss. 764-768.
 
 198 Of Indictable Offences. [book i. 
 
 arbitrators; that the defendant afterwards, intending to deceive the 
 arbitrators to be appointed under the contract and wrongfully to 
 make it appear to them that the bulk of the cargo was of better 
 quality than it really was, so as to pervert the due course of law and 
 justice, unlawfully and designedly removed the contents of the sealed 
 bags and altered their character, and returned to the bags a quantity 
 of wheat in a different condition, and altered in character and value, 
 with intent thereby to pass the same off as true and genuine samples 
 of the bulk of the cargo ; and that afterwards the defendant forwarded 
 the samples so altered to the London Corn Trade Association, with 
 intent that the same should be used as evidence before such arbitrators, 
 and thereby to injure and prejudice the buyer, and to pervert the 
 due course of law and justice. It was held that the count stated an 
 indictable misdemeanor at common law. (t) 
 
 Where the defendant was indicted for having coining instruments 
 in his custody, with intent to coin half guineas, shillings and sixpences, 
 and to utter them as and for the current coin, Lord Hardwicke 
 doubted what the offence was. But the Court of King's Bench held 
 the offence to be a misdemeanor ; Lee, C. J., saying, that ' all that 
 was necessary in such a case was an act charged, and a criminal in- 
 tention joined to that act.' (u) But though this doctrine be correct, 
 it does not appear to have been applicable to the facts of the case as 
 charged, which did not amount to a criminal act by the defendant. 
 And this case was considered untenable in a case, in which it was 
 holden that having counterfeit silver in possession with intent to 
 utter it as good is no offence, there being no criminal act done. 
 The prisoner had been found guilty of unlawfully having in possession 
 counterfeit silver coin with intent to utter it as good : but the judges 
 were of opinion that there must be be some act done to constitute a 
 crime, and that the having in possession only was not an act. (v) 
 And this distinction was acted upon in a case where some counts 
 charged the prisoner with preserving and keeping in his possession 
 obscene prints, with intent unlawfully to utter the same, and others 
 charged the prisoner with obtaining and procuring obscene prints 
 with a like intent ; and it was held that the former counts were 
 bad, for they were consistent with the possibility that the prisoner 
 might have originally had the prints in his possession with an 
 innocent intention, and there was no act shown to be done which 
 could be considered as the first step in the commission of a misde- 
 meanor ; but that the latter counts were good, for the procuring of 
 such prints was an act done in the commencement of a misde- 
 meanor, (w) But the having a large quantity of counterfeit coin in 
 
 (t) R. v. Vreones (1891), 1 Q. B. 360. Brandon's case, Old Bailey, 1698 ; and also 
 
 See R. v. Hall, ibid. 747. a case where the party was indicted for buy- 
 
 (u) Sutton's case, Rep. temp. Hardw. ing counterfeit shillings with an intent to 
 
 370 ; 2 St. 1074. In this case there were utter them in payment, Cox's case, Old 
 
 cited, in support of the prosecution, a case Bailey, 1690. See post, as to the unlawful 
 
 of a conviction of three persons for having possession of coining implements, 
 
 in their custody divers picklock keys with (v) R. v. Stewart, Mich. T. 1814, R. & 
 
 intent to break houses, and steal "goods; R. 288. S. P. Rex v. Heath, East. T. 
 
 R. v. Lee & others, Old Bailey, 1689 ; and a 1810. R. & R. 184. See 24 & 25 Vict, 
 
 case of an indictment for making coining c. 99, s. 11, as to this offence, 
 
 instruments, and having them in possession ( w) R. v. Dugdale, 1 E. & B. 435. Dears. 
 
 with intent to make counterfeit money. C. C. R. 64.
 
 chap. IV.] Of Indictable Offences. 199 
 
 possession, under suspicious circumstances and unaccounted for, is 
 evidence of having procured it with intent to utter it as good, which 
 is clearly a criminal act punishable as a misdemeanor. Thus upon 
 an indictment for procuring counterfeit shillings with intent to utter 
 them as good, the evidence was that two parcels were found upon 
 the prisoner containing about twenty shillings each, wrapped up in 
 soft paper to prevent their rubbing, and there was nothing to induce 
 a suspicion that the prisoner had coined them ; and the judges were of 
 opinion unanimously, that procuring with intent to utter was an offence, 
 and that the having hi possession unaccounted for, and without any 
 circumstances to induce a belief that the prisoner was the maker was 
 evidence of procuring, (x) But the effect of such evidence would be 
 removed by circumstances sufficient to induce a suspicion that the 
 prisoner was the maker of the coin found in his possession ; and, upon 
 the argument in the last case, Thomson, C. B., mentioned a case where 
 he had directed an acquittal, because from certain powder found upon 
 the prisoner, there was a presumption that he was the maker of the 
 coin, (y) Upon an indictment for procuring counterfeit money with 
 intent to utter it, the uttering the money, knowing it to be counter- 
 feit, is evidence that it was procured with that intent, (z) 
 
 With respect to persons having implements for house-breaking, &c, 
 in their possession with a felonious intent, the Legislature has made 
 some provisions. The 5 Geo. 4, c. 83, s. 4, made persons having in 
 their possession implements of house-breaking or weapons with in- 
 tent (a) to commit any felonious act, liable to be summarily convicted ; 
 and the 24 & 25 Vict. c. 96, s. 58, makes persons armed with offensive 
 weapons, or in possession of implements of house-breaking, guilty of a 
 misdemeanor. And in some instances an act, accompanied with a 
 certain intent, has been made a felony by particular statutes ; as by 
 the 24 & 25 Vict. c. 96, s. 38, the severing with intent to steal the 
 ore of any metal, or any coal, &c, from any mine, bed, or vein thereof, 
 is made felony punishable by two years imprisonment. And by the 
 24 & 25 Vict. c. 97, s. 14, the damaging certain articles in a course of 
 manufacture, with intent to destroy them, and the entering certain 
 places with intent to commit such offence, is made felony punishable 
 by penal servitude for life or imprisonment, &c. 
 
 Cases indictable under statutes. — Where an offence is not so at 
 common law, but made an offence by Act of Parliament, an indict- 
 ment will lie where there is a substantive prohibitory clause in 
 such statute, though there be afterwards a particular provision and 
 a particular remedy given, (b) Thus, an unqualified person may be 
 indicted for acting as an attorney contrary to the 6 & 7 Vict. c. 73, 
 
 (x) R. v. Fuller & Robinson, East. T. (y) Fuller & Robinson's case, supra. 
 
 1816. MS. Bayley, J., R. & R. 308. See (a) Brown's case, 1 Lew. 42, Holroyd, 
 
 R. v. Jarvis, Dears. C. C. 552, post, Coin. J. It is said the learned judge seemed to 
 
 In the marginal note to Parker's case, 1 consider a procurement elsewhere, with 
 
 Leach, 41, it is stated, that having the pos- intent to utter, a continuing procurement in 
 
 session of counterfeit money with intention the county where the uttering took place, 
 to pay it away as and for good money, is (a) See 32 & 33 Vict. c. 99, s. 9. 
 
 an indictable offence at common law. This (6) R. v. Wright, 1 Burr. 543. R. v. 
 
 may be criminal in some cases of such pos- Gregory, 5 B. & Ad. 555. 2 N. & M. 478. 
 
 session, as we have seen above : but, qiccere, R. v. Crossley, 10 A. & E. 132. R. v. 
 
 if the point, as stated in the marginal note, Walker, 44 L. J. M. C. 169. 
 was actually decided in Parker's case.
 
 200 Of Indictable Offences. [book i. 
 
 s. 2, although sec. 35 and sec. 36 enact, that in case any person shall so 
 act he shall be incapable of recovering his fees, and such offence shall 
 be deemed a contempt of court and punishable accordingly, (c) And 
 it is stated as an established principle that when a new offence is 
 created by an Act of Parliament, and a penalty is annexed to it by a 
 separate and substantive clause, it is not necessary for the prosecutor 
 to sue for the penalty ; but he may proceed on the prior clause, on 
 the ground of its being a misdemeanor, (d) And wherever a statute 
 forbids the doing of a thing, the doing it wilfully, although without 
 any corrupt motive, is indictable, (e) Thus, under the 3 & 4 Yict. 
 c. 95, s. 15, which made it a misdemeanor if any person ' shall wil- 
 fully do, or cause to be done, anything in such a manner as to obstruct 
 any engine or carriage using any railway, Maule, J., held, that if a 
 person designedly placed on a railway substances having a tendency 
 to produce an obstruction, he was within the Act, and that it was not 
 necessary that he should have placed them there expressly with the 
 view to obstruct an engine. (/) If a statute enjoin an act to be done, 
 without pointing out any mode of punishment, an indictment will lie 
 for disobeying the injunction of the Legislature, (g) Thus, the father 
 of a child is indictable if. being requested by the registrar within 
 forty-two days of its birth so to do, he wilfully refuse to inform the 
 registrar of the particulars required by the Act to be registered touch- 
 ing the birth, contrary to the 6 & 7 Will. 4, c. 86, s. 20. (Ji) And 
 this mode of proceeding in such a case is not taken away by a subse- 
 quent statute pointing out a particular mode of punishment for such 
 disobedience, (i) Where the same statute which enjoins an act to be 
 done contains also an enactment providing for a particular mode of 
 proceeding, as commitment, in case of neglect or refusal, it has been 
 doubted whether an indictment will lie. (j) But where a statute 
 
 (c) R. v. Buchanan, 8 Q. B. 883. it was held to be a misdemeanor in magis- 
 
 (d) By Ashurst, J., in R. v. Harris, 4 trates to grant an ale license where they had 
 T. R. 205. And this principle has been no jurisdiction. See R. v. Nott, 4 Q. B. 
 held to apply, where the clause annexing 768, per Lord Denman, C. J. 
 
 the penalty was in the same section of the (/) R. v. Holroyd, 2 JI. & Rob. 339 ; 
 
 statute. Thus the repealed clause, 5 Eliz. and see Jones v. Taylor, E. & E. 20, as to 
 
 c. 4, s. 31, enacted, 'that it shall not be the meaning of the words ' wilfully trespass 
 
 lawful to any person to set up, &c, any upon any railway,' in the 3 & 4 Vict. c. 97, 
 
 craft, mystery, &c, except he shall have s. 16. 
 
 been brought up therein seven years as an (g) R. v. Davis, Say. 133. 1 
 
 apprentice,' &c, upon pain that every per- (h) R. v. Price, 11 A. & E. 727. 
 
 son willingly offending or doing the contrary (i) R. v. Boyal, 2 Burr. 832. R. v. 
 
 forfeit for every default forty shillings for Balme, Cowp. 648, cited in the notes to 2 
 
 every month ; and the method of proceed- Hawk. P. C. c. 25, s. 4. And, generally 
 
 ing upon this statute was either by infor- speaking, the Court of King's Bench cannot 
 
 mation qui tarn in the court of oyer and be ousted of its jurisdiction but by express 
 
 terminer or sessions of the county, &c, words, or by necessary implication. By 
 
 where the offence was committed, to recover Ashurst, J., in Gates v. Knight, 3 T. R. 445. 
 
 the penalty, or by indictment in those (j) R. v. Cummings and another, 5 Mod. 
 
 courts. See the cases collected in the note 179. R v. King, 2 Str. 1268 ; Cases of 
 
 to R. v. Kilderby, 1 Saund. 312 a. But it indictments against overseers for neglecting 
 
 should be observed that a subsequent section to account, and for not paying over the 
 
 (39) gave authority to proceed by indictment, balance within the time limited by the stat- 
 
 or by information, &c. ute. But see the authorities ; and, in 2 Nol. 
 
 (e) R. v. Sainsbury, 4 T. R. 457, where P. L. 453, it is stated that an indictment 
 
 American Note. 
 1 See also Bishop, i. ss. 237, 239.
 
 chap, iv.] Of Indictable Offences. 201 
 
 only adds a further penalty to an offence prohibited by the common 
 law, there is no doubt hut that the offender may still be indicted, if 
 the prosecutor think fit, at the common law ; (k) and if it gives a new 
 punishment or new mode of proceeding for what before was a misde- 
 meanor, without altering the class or character of the offence, the 
 new punishment or new mode of proceeding is cumulative only, and 
 the offender may be proceeded against as before for the common-law 
 misdemeanor. Therefore, notwithstanding the provisions of 9 & 10 
 Will. 3, c. 32, against blasphemy, it was held that a blasphemous 
 libel might be prosecuted as a common-law offence. (7) Where a 
 statute makes that felony which before was a misdemeanor only, the 
 misdemeanor is merged, and there can be no prosecution afterwards 
 for the misdemeanor. (v?i) It is an offence at common law to obstruct 
 the execution of powers granted by statute, (ri) But where a public 
 Act regulates rights which are merely private, an indictment will not 
 lie for the infringement of those rights : as, if a statute empowers the 
 setting out of private roads and the directing their repairs, an indict- 
 ment does not lie for not repairing them, (o) 
 
 Cases not indictable under statutes. 3 — - Where the statute making a 
 new offence only inflicts a forfeiture and specifies the remedy, an indict- 
 ment will not lie. (p) The true rule is stated to be this : Where the 
 offence was punishable by a common-law proceeding, before the passing 
 of a statute which prescribes a particular remedy by a summary pro- 
 ceeding, then either method may be pursued, as the particular remedy 
 is cumulative, and does not exclude the common-law punishment ; but 
 where the statute creates a new offence by prohibiting and making 
 unlawful anything which was lawful before, and appoints a particular 
 remedy against such new offence by a particular sanction and par- 
 ticular method of proceeding, such method of proceeding must be pur- 
 sued and no other, (q ) The mention of other methods of proceeding 
 impliedly excludes that of indictment ; (r) unless such methods of pro- 
 ceeding are given by a separate and substantive clause, (s) Thus it 
 has been held, (t) and seems now to be settled, (u) that where a stat- 
 
 will lie in these cases, though the statute to orders of the Epping Forest Commis- 
 
 provides another remedy by commitment, sioners, see R. v. Walker, 13 Cox, C. C. 94. 
 See cases there cited. (o) R. v. Richards, 8 T. R. 637. 
 
 (k) 2 Hawk. P. C. c. 25, s. 4. R. v. (p) R. v . Wright, 1 Burr. 543. R. v. 
 
 Wigg, Lord Raym. 1163. 2 Salk. 460. And Douse, 1 Lord Raym. 672. 
 see the cases collected in R. v. Dickenson, 1 (q) R. v. Robinson, 2 Burr. 805. R. v. 
 
 Saund. 135 a, note (4). Carlisle, 3 B. & A. 163. R. v. Boyal, 2 Burr. 
 
 (I) R. v. Carlisle, 3 B. & A. 161, 164.1 83 2. See also Hartley v. Hooker, Cowp. 
 
 (m) But see now the 14 & 15 Vict. c. 100, 524. R. v. Wright, 1 Burr. 543. R. v. 
 
 s. 12. R. v. Cross, 1 Lord Raym. 711 ; and Balme, Cowp. 650. And see Faulkner's case, 
 
 see R. v. Gregory, L. R. 1 C. C. R. 77. 2 1 Saund. 250, note (3). 
 
 (n) R. v. Smith and others, Dougl. 441. (r) 2 Hawk. c. 25, s. 4. 
 
 And an indictment for such offence need not, (s) Ante, p. 199. 
 
 and ought not, to conclude contra for mam (t) Glass's case, 3 Salk. 350. 
 
 statuti. For an indictment for disobedience (u) 2 Hawk. c. 25, s. 4. 
 
 American Notes. 
 
 1 And this is so in America, see Bishop, ii. * As to the doctrine of merger in America 
 
 s. 74. Various statutes have been passed in see Bishop, i. s. 787. 
 
 many of the States declaratory of the law, 3 In Bishop, i. s. 238, it is said that a thing 
 
 s. 80, and profane swearing to such an extent to be indictable must be of a sort which the 
 
 as to become a public nuisance is also indict- common law makes so. 
 able in America. S. v. Jones, 9 I red. N. C. 33.
 
 202 Of Indictable Offences. [book i. 
 
 ute making a new offence, not prohibited by the common law, appoints 
 in the same clause a particular manner of proceeding against the 
 offender, as by commitment or action of debt or information, without 
 mentioning an indictment, no indictment can be maintained. By 21 
 Hen. 8, c. 13, s. 1, no spiritual person shall take land to farm on pain 
 to forfeit £10 per month ; and it was decided on this statute, that as 
 the clause prohibiting the act specified the punishment, the defendant 
 was not liable to be indicted, (v) And it was held not to be an indict- 
 able offence to keep an ale-house without a licence, because a par- 
 ticular punishment, namely, that the party be committed by two 
 justices, was provided by the statute, (to) And an indictment for 
 assaulting and beating a custom-house officer in the execution of 
 his office was quashed, because the 13 & 14 Car. 2, c. 11, s. 6, ap- 
 pointed a particular mode of punishment for that offence, (x) So an 
 indictment will not lie against an overseer for wilful breaches of the 
 duties imposed upon him by the Eegistration Act, 1843, in preparing 
 and publishing voters' lists, inasmuch as the sections prescribing those 
 duties contain no general prohibitory clause, and s. 51 gives the revis- 
 ing barrister power to fine overseers for wilful breaches of duty, and 
 s. 97 gives the party aggrieved the right to bring a penal action against 
 the overseer for every wilful misfeasance or wilful act of commission 
 or omission contrary to the act. (y) 
 
 Cases not indictable at common law. — Amongst other decisions as 
 to cases which cannot be made the subject of indictment, it appears 
 to have been ruled that an indictment will not lie for acting, not 
 being qualified, as a justice of peace ; (z) nor for selling short meas- 
 ure ;(«) nor for excluding commoners by enclosing ; (b) nor for an 
 attempt to defraud, if neither by false tokens or conspiracy ; (c) nor 
 
 (v) R. v. Wright, 1 Burr. 543. of the prosecution, a note in 1 Hawk. P. C. 
 
 \w) Anon., 3 Salk. 25. S. P. "Watson's c. 71, s. 1, referring to 1 Sess. Ca. 217, was 
 
 case, i Salk. 45, and Pi. v. Edwards, 3 Salk. cited, where it is laid down, ' that changing 
 
 27. And see Faulkner's case, 1 Saund. 248, corn by a miller, and returning bad corn 
 
 and Mr. Serj. "Williams's note (3) at page instead of it, is punishable by indictment ; 
 
 250 e. for, being in the way of trade, it is deemed 
 
 (x) Anon., 2 Lord Raym. 991. 3 Salk. an offence against the public :' but it was 
 
 189. So an indictment for keeping an held that the indictment would not lie. Lord 
 
 alehouse was quashed, because the 3 Car. 1, Ellenborough, in giving judgment, said, that 
 
 c. 3, had directed a particular remedy. R. if the allegation had been that the miller 
 
 i>. James, cited in R. v. Buck, 1 Stra. 679. delivered the mixture as an article for the 
 
 R. v. Malland, 2 Stra. 828. food of man, it might possibly have sus- 
 
 (ij) R. v. Hale (1S91), 1 Q. B. 747. 17 tained the indictment, but that he could 
 
 Cox, C. C. 278, per Charles, J. not say that its being musty and unwhole- 
 
 (:) Castle's case, Cro. Jac. 643. some necessarily and ex vi termini imported, 
 
 (a) R. v. Osborn, 3 Burr. 1697; but that it was for the food of man ; and it was 
 selling by false measure is indictable. Ibid, not stated that it was to be used for the sus- 
 
 (b) Willoughby's case, Cro. Eliz. 90. tentation of man, but only that it was a 
 
 (c) R. v. Channell, 2 Stra. 793. Indict- mixture of oat and bailey meal. His Lord- 
 ment against a miller for taking and detain- ship then proceeds : ' As to the other point, 
 ing part of the corn sent to him ; and R. v. that this is not an indictable offence, because 
 Bryan, 2 Stra. 866. Anon., 6 Mod. 105. R. it respects a matter transacted in the course 
 v. Wheatley, 2 Burr. 1125. R. v. Wilders, of trade, and where no tokens were exhibited 
 cited, 2 Burr. 1128 ; and R. v. Haynes, 4 by which the party acquired any greater de- 
 M. & S. 214. This last case was an indict- gree of credit, if the case had been that this 
 ment against a miller, for receiving good miller was owner of a soke-mill, to which the 
 barley to grind at his mill, and delivering a inhabitants of the vicinage were bound to 
 mixture of oat and barley meal, different resort, in order to get their corn ground, and 
 from the produce of the barley, and which that the miller, abusing the confidence of 
 was musty and unwholesome. On the part this his situation, had made it a colour for
 
 CHAP. IV.] 
 
 Of Indictable Offences. 
 
 203 
 
 for secreting another \{cl) nor for bringing a bastard child into a 
 parish ;(e) nor for entertaining idle and vagrant persons in the de- 
 fendant's house ; (/) nor for keeping a house to receive women with 
 child, and deliver them, (g) 
 
 Where an indictment alleged that the prisoner contriving to injure 
 the inhabitants of the parish of Bathwicke, and unjustly to bur- 
 then them with the maintenance of her bastard child, being of very- 
 tender age and unable to move or walk, unlawfully did abandon the 
 said child in the said parish without having provided any means for 
 the support of the said child, the said child not being settled in the 
 said parish ; it was held that the indictment was bad, because the 
 mere abandonment, the possible consequence of which might be to 
 injure the parish, was not an indictable offence, (h) 
 
 Where an indictment stated that the prisoner intending to burthen 
 the inhabitants of a parish with the maintenance of her bastard child 
 abandoned the said child in the said parish, and it appeared that the 
 prisoner left the child in a dry ditch in a field in the parish ; there 
 was a pathway in the field by the ditch, and a lane separated from 
 the ditch by a hedge neither of which was much frequented ; Parke, 
 B., held that there was no ground for imputing any intention to bur- 
 then the parish, as it was not placed in a position where it was likely 
 to come to the knowledge of the officers of the parish, (i) 
 
 It has been held that administering a poisonous ingredient with 
 
 practising a fraud, this might have presented 
 a different aspect ; but as it now is, it seems 
 to be no more than the case of a common 
 tradesman, who is guilty of a fraud in a 
 matter of trade or dealing ; such as is ad- 
 verted to in R. v. Wheatley, and the other 
 cases, as not being indictable.' And see also 
 R. v. Bower, Cowp. 323, as to the point that 
 for an imposition, which a man's own pru- 
 dence ought to guard him against, an indict- 
 ment does not lie, but he is left to his civil 
 remedy. But in R. v. Dixon, 3 M. & S. 11, 
 it was held, that a baker who sells bread 
 containing alum, in a shape which renders it 
 noxious, is guilty of an indictable offence, if 
 he ordered the alum to be introduced into 
 the bread, although he gave directions for 
 mixing it up in the manner which would 
 have rendered it harmless. See post, Spread- 
 ing Contagious Disorders. 
 
 (d) R. v. Chaundler, 2 Lord Raym. 1368 ; 
 an indictment for secreting A., who was with 
 child by the defendant, to hinder her evi- 
 dence, and to elude the execution of the law 
 for the crime aforesaid. But qu. 
 
 (c) R. v. Warne, 1 Stra. 644, it appearing 
 that the parish could not be burthened, the 
 child being born out of it. But see a prece- 
 dent of an indictment for a misdemeanor at 
 
 common law, in lodging an inmate, who was 
 delivered of a bastard child, which became 
 chargeable to the liberty. 2 Chit. Crim. 
 Law, 700. And see also id. 699, and 4 
 Wentw. 353. Cro. Circ. Comp. (7th edit.) 
 648, precedents of indictments for misde- 
 meanors at common law, in bringing such 
 persons into parishes in which they had no 
 settlements, and in which they shortly died, 
 whereby the parishioners were put to ex- 
 pense. In one case it is stated to have been 
 held, that no indictment will lie for procur- 
 ing the marriage of a female pauper with a 
 labouring man of another parish, who is not 
 actually chargeable. R. v. Tanner, 1 Esp. 
 304. But if the facts of the case will war- 
 rant a charge of conspiracy, the offence would 
 be substantiated, if under the circumstances 
 the parish might possibly be put to expense. 
 See 1 Nol. P. L. Settlement by Marriage, 
 Sec. I. in the notes. R. v. Seward, 1 A. & 
 E. 706. 3 N. & M. 557. 
 
 (/) R. v. Langley, 1 Lord Raym. 790. * 
 
 (g) R. v. Macdonald, 2 Burr. 1646. 
 
 (h) R. v. Hogan, 2 Den. C. C. 277. The 
 indictment was also held bad, because it did 
 not allege that the child suffered any injury. 
 
 (i) R. v. Renshaw, 2 Cox, C. C. 285. 
 
 American Note. 
 
 1 Probably in America this would be an indictable offence if accompanied by great 
 disorder, see Bishop, Vol. i. ss. 1113-1118.
 
 204 Of Indictable Offences. [book i. 
 
 intent to hurt and damage the body, and whereby sickness and dis- 
 order of the body is caused, is not indictable. (J) 
 
 Cases of non-feasance and particular wrong done to another are 
 not in general the subject of indictment ; and it has been doubted 
 whether a clergyman is indictable for refusing to marry persons 
 who were lawfully entitled to be married ; (k) but circumstances may 
 exist of mere non-feasance towards a child of tender years (such as 
 the neglect or refusal of a master to provide sufficient food and sus- 
 tenance for such a child, being his servant and under his dominion 
 and control), which may amount to an indictable offence. (I) 
 
 It has been held, that where a mayor of a city, being a justice, 
 made an order that a company in the city should admit one to be 
 a freeman of that corporation, and the master of the company, being 
 served with the order, refused to obey it, such refusal was not the 
 subject of indictment, (m) And an indictment will not lie for not 
 curing a person of a disease according to promise, for it is not a 
 public offence, and no more in effect than a ground for an action, (n) 
 To keep an open shop in a city, not being free of the city, con- 
 trary to the immemorial custom there, has been held not to be 
 indictable, (o) 
 
 Trespasses. — With regard to trespasses, it has been held that a 
 mere act of trespass (such as entering a yard and digging the ground, 
 and erecting a shed or cutting a stable) committed by one person, 
 unaccompanied by any circumstances constituting a breach of the 
 peace, is not indictable; and the Court quashed such indictment on 
 motion, {p) And an indictment against one person for pulling off 
 the thatch of a man's house, who was in the peaceable possession of 
 it, was also quashed on motion, (q) So an indictment for taking away 
 chattels must import that such a degree of force was used as made 
 the taking an offence against the public. An indictment averred 
 that the defendant with force and arms unlawfully, forcibly, and 
 injuriously seized, took, and carried away, of and from J. S., and 
 against his will, a paper-writing purporting to be a warrant to appre- 
 hend the defendant for forgery ; and, after a conviction, a motion was 
 made in arrest of judgment on the ground that the charge did not 
 amount to an indictable offence. Perryn, B., took time to consider 
 until the subsequent assizes, and had the case argued before him ; 
 
 (j) R. v. Hanson, 2 C. & K. 912, Wil- 3 Salk. 189. In an Anon, case, 2 Salk. 522, 
 liams and Cresswell, JJ. 1 This case would it appears to have been held, that if a pawn- 
 fall within the 24 & 25 Vict. c. 100, s. 24, broker refuses, upon tender of the money, 
 post, Attempts to Murder. As to husband to deliver the goods pledged, he may be 
 infecting wife with gonorrhoea, see R. v. indicted. But see R. v. Jones, 1 Salk. 379, 
 Clarence, 22 Q. B. D. 23, post. contra. 
 
 {k) R. v. James, 2 Den. C. C. 1. The (o) R. v. George, 3 Salk. 188. Nor is 
 
 point was not decided, as there had been no it an indictable' offence to exercise trade in a 
 
 sufficient demand to marry. borough contrary to the bye-laws of that 
 
 (I) See post. borough. R. v. Sharpless, 4 T. R. 777. 
 
 (ra) R. v. Atkinson, 3 Salk. 188. (p) R. v. Storr, 3 Burr. 1699. 
 
 (n) R. v. Bradford, 1 Lord Raym. 366. (q) R. v. Atkins, 3 Burr. 1706. 
 
 American Note. 
 
 1 This case has been doubted in America, battery, C. v. Stratton, 114 Mass. 303; 19 
 Bishop, i. s. 491, and in Massachusetts such Am. R. 350. 
 an act has been held to be an assault and
 
 chap, iv.] Of Indictable Offences. 205 
 
 and then held the objection valid, as the indictment charged nothing 
 but a mere private trespass, and neither the King nor the public 
 appeared to have any interest therein, (r) 
 
 But where the indictment stated the entering a dwelling-house, 
 and vi et armis and with strong hand turning out the prosecutor, 
 the Court refused to quash it. (s) And an indictment will lie for 
 taking goods forcibly, if such taking be proved to be a breach of the 
 peace : (t) and though such goods are the prosecutor's own property, 
 yet, if he take them in that manner, he will be guilty, (w) 
 
 Effect of repeal of statutes creating offences. — As questions occasion- 
 ally arise as to the effect of the repeal of statutes creating offences, it 
 may be well to notice this subject. ' It has been long established that 
 when an Act of Parliament is repealed, it must be considered (except 
 as to transactions passed and closed) as if it had never existed.' (v) 
 Where, therefore, a justice of the peace, under the 13 Geo. 3, c. 78, 
 s. 24, presented the inhabitants of a parish for the non-repair of a high- 
 way, and the proceedings were removed into the Court of Queen's 
 Bench, and the defendants pleaded, and issues of fact were joined, 
 and a verdict found against the defendants, and the issues had been 
 joined before, but tried after, the day on which the 5 & 6 Will. 4, 
 c. 50, repealing the 13 Geo. 3, c. 78, came into operation, the judg- 
 ment was arrested, on the ground that the power to give judgment 
 upon a presentment made under the 13 Geo. 3, c. 78, was gone, (w) 
 So where the liability to repair certain highways in a parish was taken 
 away from the parish by a statute, and cast upon certain townships, 
 and the statute gave a form of indictment against the townships for 
 non-repair, and one of the townships was indicted under the Act, 
 but before the trial the Act was repealed, and a verdict was found 
 against the township, the judgment was arrested, on the ground that, 
 although whatever had been done under the Act before it was repealed 
 was valid, the statute when repealed was, with regard to any future 
 operation, as if it had never existed, and the effect of the repeal is 
 the same whether the alteration affect procedure only or matter 
 which is more of substance, (x) So where a prisoner was indicted 
 for privately stealing in a shop against the 10 & 11 Will. 3, c. 23, 
 which was repealed after the offence was committed, but before the 
 prisoner was tried, by the 1 Geo. 4, c. 117, s. 1, it was held that the 
 prisoner could not be sentenced under the repealed Act. (y) 
 
 Repealing Acts, however, sometimes contain clauses for the pur- 
 
 (r) R. v. Gardiner, Salisbury, 1780, MS. (v) Per Lord Tenterden, C. J., Surtees v. 
 
 Bayley, J. Ellison, 9 B. & C. 752. 
 
 (s) R. v. Storr, 3 Burr. 1699. 1 (w) R. v. Mawgan, 8 A. & E. 496. 
 
 U) Anon. 3 Salk. 187. (*) R. v. Denton, 18 Q. B. 761. 
 
 (u) Ibid. See Blades v. Higgs, 10 C. B. (y) R. v. M'Kenzie, R. & R. 429. 
 
 (N. S.)713. 12 C. B. (N. S.) 501. 
 
 American Note. 
 
 1 And see S. v. Batcbelder, 5 N. H. 549 ; pass, and cites a number of American cases. 
 
 S. v. Wilson, 3 Miss. 125, and a case where The principle in America, as here, seems to 
 
 a woman miscarried in consequence of the be that a trespass upon the personal property 
 
 disturbance, C. v. Taylor, 5 Binn. 277. Mr. of another is only indictable where it tends 
 
 Bishop (see Vol. ii. s. 517 ct scq.) devotes a to a breach of the peace. See also May's 
 
 small chapter to the offence of Forcible Tres- Criminal Law, s. 170.
 
 206 Of Indictable Offences. [book i. 
 
 pose of keeping alive the statutes they repealed so far as they relate 
 to offences committed against them, and where a bankrupt had com- 
 mitted an offence against the 12 & 13 Vict. c. 106, s. 251, and an 
 information had been laid before a magistrate for that offence, and a 
 warrant issued for the prisoner's apprehension, before the 24 & 25 
 Vict. c. 134, came into operation, which by sec. 230 repeals the former 
 Act, except as to ' any proceeding pending,' &c, ' or any penalty 
 incurred,' &c, at the commencement of the Act, it was held that 
 there was a proceeding pending within the meaning of this exception, 
 and that the word ' penalty ' in it extended to any penal consequences 
 whatever, and was not restricted to a pecuniary penalty, and, con- 
 sequently, that the bankrupt might be convicted and sentenced under 
 the former Act. (z) 
 
 Many offences ordinarily punishable on summary conviction are 
 under certain circumstances made indictable. 
 
 By the Summary Jurisdiction Act, 1S79, 42 & 43 Vict. c. 49, s. 17, 
 ' A person when charged before a court of summary jurisdiction 
 with an offence in respect of the commission of which an offender is 
 liable on summary conviction to be imprisoned for a term exceeding 
 three months, (a) and which is not an assault, may, on appearing before 
 the court and before the charge is gone into, but not afterwards, claim 
 to be tried by a jury, and thereupon . . . the offence shall as respects 
 the person so charged be deemed to be an indictable offence and if 
 the person so charged is committed for trial or bailed to appear for 
 trial, shall be prosecuted accordingly, and the expenses of the prosecu- 
 tion shall be payable as in cases of felony.' 
 
 By the Cruelty to Animals Act, 1876, 39 & 40 Vict. c. 77, s. 15, 
 ' Where a person is accused before a court of summary jurisdiction 
 of any offence against this Act in respect of which a penalty of 
 more than five pounds can be imposed, the accused may, on appear- 
 ing before the court of summary jurisdiction, declare that he objects 
 to being tried for such offence by a court of summary jurisdiction, 
 and thereupon the court of summary jurisdiction may deal with 
 the case in all respects as if the accused were charged with an in- 
 dictable offence, and not an offence punishable on summary convic- 
 tion, and the offence may be prosecuted on indictment accordingly.' 
 
 (z) K. v. Smith, L. & C. 131. not 43 & 44 Vic. c. 20, s. 20. See Carle 
 
 (a) E. g., 43 & 44 Vic. c. 16, s. 5. But Elkingtou, 17 Cox, C. C. 557.
 
 BOOK THE SECOND. 
 
 OF OFFENCES PRINCIPALLY AFFECTING THE GOVERNMENT, 
 THE PUBLIC PEACE, OR THE PUBLIC RIGHTS. 
 
 CHAPTER THE FIEST. 
 
 OF COUNTERFEITING OR IMPAIRING COIN — OF IMPORTING INTO THE 
 KINGDOM COUNTERFEIT OR LIGHT MONEY — AND OF EXPORTING 
 COUNTERFEIT MONEY. 
 
 Sec. I. 
 Of Counterfeiting Coin. 1 
 
 The Legislature has made provision against the counterfeiting of 
 the following descriptions of coin, namely : — I. The King's current 
 gold or silver coin. II. Foreign gold, silver, or copper coin. III. The 
 copper money of this realm. 
 
 Counterfeiting the King's gold and silver coin. — I. The first of 
 these, usually called the King's money, was protected by enactments, 
 which placed the offence of counterfeiting it in the highest class of 
 crimes, upon the ground that the royal majesty of the Crown was 
 affected by such offence in a great prerogative of government ; the 
 coining and legitimation of money, and the giving it its current value, 
 being the unquestionable prerogatives of the Crown, (a) But these 
 enactments were repealed by the 2 Will. 4, c. 34, s. 1 (now repealed 
 by the 24 & 25 Vict. c. 95). 
 
 What is the King's money. — It appears that the coin or money of 
 this kingdom consists properly of gold or silver only, with a certain 
 alloy, constituting what is called sterling, coined and issued by the 
 King's authority: and therefore such money is supposed to be re- 
 ferred to by any statute naming 'money' generally, (b) The weight, 
 
 (a) 1 Hale, 188. 1 East, P. C. 148. (5) 1 East, P. C. 147. And see 1 Hale, 
 
 chaps. 17, 18, 19, 20. 
 
 American Note. 
 
 1 As to false money in Massachusetts see several States of the Union. Where the stat- 
 
 C. v. Fuller, 8 Met. 313. As to other States, ute does not seem to fit the facts of the 
 
 Harlan v. P., 1 Dougl. 207. As to foreign case, it would seem that sometimes resort 
 
 money, Rouse v. S., 4 Geo. 136. With re- may be had to the common law with respect 
 
 spect to offences relating to counterfeit coin to cheating by false tokens or otherwise, 
 
 in America the reader must be referred to As to which, see Bishop, Vol. ii. Ch. xiii. 
 
 the statutes of the United States and of the Wilson v. S., 1 Wis. 184.
 
 208 Of Counterfeiting Coin. [book ii. 
 
 alloy, impression, and denomination, of money made in this kingdom 
 are generally settled by indenture between the King and the master 
 of the mint : but the Coinage Act, 1870, now regulates the standard 
 of coins ; and has consolidated and amended the law in this respect, (c) 
 A proclamation has in some cases been made as a more solemn man- 
 ner of giving the coin currency : but the proclamation in general 
 cases is certainly not necessary, and in prosecutions for coining need 
 not be proved, (d) And it is not necessary in such prosecutions 
 to produce the indentures ; though it may be of use in case 
 of any new coin with a new impression, not yet familiar to the 
 people, to produce either the indentures, or one of the officers of the 
 mint cognizant of the fact, or the stamps used, or the like evidence. 
 But in general, whether the coin, upon a cpuestion of counterfeiting or 
 impairing it, be the King's money or not, is a mere question of fact 
 which may be found upon evidence of common usage or notoriety, (e) 
 It should be observed, that any coin, once legally made and issued by 
 the King's authority, continues to be the current coin of the kingdom 
 until recalled, notwithstanding any change in the authority by which 
 it was constituted. (/) Her Majesty in council may direct the estab- 
 lishment of any branch of the mint in any British possession, and 
 make the coins issued by it a legal tender, and also direct that foreign 
 coins may be a legal tender, (g) 
 
 Interpretation of terms. — The 24 & 25 Vict. c. 99, which came into 
 effect on the 1st of November, 1861, (h) and applies to England, Scot- 
 land, and Ireland, enacts by sec. 1, that, ' In the interpretation of and 
 for the purposes of this Act, the expression, " the Queen's current gold 
 or silver coin," shall include any gold or silver coin coined in any of 
 Her Majesty's mints, or lawfully current, by virtue of any proclama- 
 tion or otherwise, in any part of Her Majesty's dominions, whether 
 within the United Kingdom or otherwise ; and the expression, " the 
 Queen's copper coin " shall include any copper coin and any coin of 
 bronze or mixed metal coined in any of Her Majesty's mints, or law- 
 fully current, by virtue of any proclamation or otherwise, in any part 
 of Her Majesty's said dominions ; and the expression, " false or coun- 
 terfeit coin resembling or apparently intended to resemble or pass for 
 any of the Queen's current gold or silver coin," shall include any of 
 the current coin which shall have been gilt, silvered, washed, coloured, 
 or cased over, or in any manner altered, so as to resemble or be appar- 
 ently intended to resemble or pass for any of the Queen's current coin 
 of a higher denomination ; and the expression " the Queen's current 
 coin " shall include any coin coined in any of Her Majesty's mints, or 
 lawfully current, by virtue of any proclamation or otherwise, in any 
 'part of Her Majesty's said dominions, and whether made of gold, sil- 
 
 (c) 33 Vict. c. 10. King, there can be no general notoriety of 
 
 (d) 1 East, P. C. 142, where see some the fact. 
 
 cases in which proclamation by the writ (/) 1 East, P. C. 148, where it is said 
 
 of proclamation under the great seal, or a also, that this recall may be by proclama- 
 
 remembrance thereof, is considered to be tion ; and long disuse may, it is conceived, 
 
 necessary to prove a coin current. be evidence of it. It has also been effected 
 
 (e) 1 East, P. C. 149. But in the case by Act of Parliament, as by 9 Will. 3, c. 2, 
 of old coin which has gradually fallen into and 6 Geo. 2, c. 26. 
 
 disuse, though still the legal coin c" the (</) See 33 Vict. c. 10, s. 11. 
 
 (h) Sec. 43.
 
 chap. I.] Of Counterfeiting Coin. 209 
 
 ver, cop-per, bronze, or mixed metal ; and where the having any matter 
 in the custody or possession of any person is mentioned in this Act, it 
 shall include not only the having of it by himself in his personal cus- 
 tody or possession, but also the knowingly and wilfully having it in the 
 actual custody or possession of any other person, and also the know- 
 ingly and wilfully having it in any dwelling-house or other building, 
 lodging, apartment, field, or other place, open or enclosed, whether 
 belonging to or occupied by himself or not, and whether such matter 
 shall be so had for his own use or benefit or for that of any other 
 person.' (i) 
 
 The words of the 2 Will. 4, c. 34, s. 21, were 'coined in any of His 
 Majesty's mints and lawfully current ' in any part of His Majesty's 
 dominions, whether within the United Kingdom or otherwise ; and 
 consequently did not include coin which was not coined in any such 
 mint, but was current in any of the colonies by virtue of any proclam- 
 ation or otherwise ; this clause is so framed as to include all such coin, 
 and by that means the provisions of this Act are extended to it. 
 
 The definition of the ' Queen's current coin ' is new. A genuine 
 sovereign was fraudulently filed at the edges, thereby reducing the 
 weight by one twenty-fourth part. The old milling being destroyed, 
 a new milling was made so as to make the coin appear like a current 
 sovereign ; it was held that the coin so altered was false and counterfeit, 
 the words 'shall include' in section 1, not being words of limitation, 
 but of extension, (j) 
 
 In R. v. Rogers, 2 M. C. C. R. 85 ; R. v. Gerrish, 2 M. & Eob. 219 ; 
 and R. v. Williams, 1 C. & M. 259, questions had arisen whether a 
 person could be said to be in possession of coin within the meaning of 
 the 2 Will. 4, c. 34, s. 21, which was with his knowledge in the per- 
 sonal possession of another, even though he were in company and act- 
 ing in concert with such other, and the words ' knowingly and wilfully 
 having it in the actual custody or possession of any other person' 
 were introduced to remove all doubt in such cases. 
 
 Counterfeiting the Queen's gold or silver coin. — Sec. 2. 'Whosoever 
 shall falsely make or counterfeit any coin resembling or apparently in- 
 tended to resemble or pass for any of the Queen's current gold or 
 silver coin, shall, in England and Ireland, be guilty of felony, and in 
 Scotland of a high crime and offence, and being convicted thereof 
 shall be liable, at the discretion of the Court, to be kept in penal 
 servitude for life or for any term not less than three years, — or to 
 be imprisoned for any term not exceeding two years, with or without 
 hard labour, and with or without solitary confinement.' (k) 
 
 Colouring counterfeit coin or any pieces of metal with intent to make 
 them pass for gold or silver coin. — Sec. 3. ' Whosoever shall gild or 
 silver, or shall, with any wash or materials capable of producing the 
 colour or appearance of gold or of silver, or by any means whatsoever, 
 wash, case over, or colour any coin whatsoever resembling or appar- 
 ently intended to resemble or pass for any of the Queen's current gold 
 
 (i) This clause is framed on the 2- Will. (k) This clause is taken from the 2 Will. 
 
 4, c. 34, s. 21, and 22 & 23 Vict. c. 30. 4, c. 34, s. 3. See the interpretation clause, 
 
 0') R. v. Hermann, 4 Q. B. D. 284, per ante, p. 208. 
 Coleridge, C. J, and Pollock & Huddleston 
 BB., (Lush and Stephen JJ., diss.) 
 VOL. I. — 14
 
 210 Of Counterfeiting Coin. [book ii. 
 
 or silver coin; or shall gild or silver, or shall, with any wash or mate- 
 rials capable of producing the colour or appearance of gold or of silver, 
 or oy any means whatsoever, wash, case over, or colour any piece of 
 silver or copper, or of coarse gold or coarse silver, or of any metal or 
 mixture of metals respectively, being of a fit size and figure to be 
 coined, and with intent that the same shall be coined into false and 
 counterfeit coin resembling or apparently intended to resemble or pass 
 for any of the Queen's current gold or silver coin ; or shall gild, or 
 shall, with any wash or materials capable of producing the colour or 
 appearance of gold, or by any 'means whatsoever, wash, case over, 
 or colour any of the Queen's current silver coin, or file or in any man- 
 ner niter such coin, with intent to make the same resemble or pass for 
 any of the Queen's current gold coin ; or shall gild or silver, or shall, 
 with any wash or materials capable of producing the colour or appear- 
 ance of gold or silver, or oy any means whatsoever, wash, case over, or 
 colour any of the Queen's current copper coin, or file or in any manner 
 alter such coin, with intent to make the same resemble or pass for 
 any of the Queen's current gold or silver coin, shall, in England and 
 Ireland, be guilty of felony, and in Scotland of a high crime and 
 offence, and being convicted thereof shall be liable,' to the same pun- 
 ishment as in sec. 2. 
 
 The words, ' by any means whatsoever,' were introduced in order to 
 include every process by which false metal can be made to appear like 
 gold or silver, whether such appearance be produced by galvanism or 
 otherwise howsoever. 
 
 The order of the words in the former clause was ' wash, colour, or 
 case over,' and it was advisedly altered. 
 
 Counterfeiting foreign gold and silver coin. — Sec. 18. ' Whosoever 
 shall make or counterfeit any kind of coin not being the Queen's cur- 
 rent gold or silver coin, but resembling or apparently intended to 
 resemble or pass for any gold or silver coin of any foreign prince, 
 state, or country, shall, in England and Ireland, be guilty of felony, 
 and in Scotland of a high crime and offence, and being convicted 
 thereof shall be liable, at the discretion of the Court, to be kept in 
 penal servitude for any term not exceeding seven years and not less 
 than three years, — or to be imprisoned for any term not exceeding 
 two years, with or without hard labor, and with or without solitary 
 confinement.' (/) 
 
 Counterfeiting foreign coin other than gold and silver coin. — 
 Sec. 22. ' Whosoever shall falsely make or counterfeit any kind of 
 coin not being the Queen's current coin, but resembling or apparently 
 intended to resemble or pass for any copper coin, or any other coin 
 made of any metal or mixed metals of less value than the silver 
 coin of any foreign prince, state, or country, shall, in England and 
 Ireland, be guilty of a misdemeanor, and in Scotland of a high crime 
 and offence, and being convicted thereof shall be liable, at the discre- 
 tion of the Court, for the first offence to be imprisoned for any term 
 not exceeding one year, and for the second offence,' to the same pun- 
 ishment as in s. 18. (m) 
 
 (I) This clause is framed from the 37 Geo. 3, c. 139, s. 3. See sec. 37 for the 
 
 Geo. 3, c. 126, s. 2. See the interpretation form of an indictment for a second offence, 
 
 clause ante, ]>. 208. &c, post. 
 
 (in) This clause is framed from the 43
 
 chap. I.] Of Counterfeiting Coin. 211 
 
 Sec. 23 provides for the summary conviction of persons in posses- 
 sion of such foreign coin as aforesaid without lawful excuse. 
 
 Counterfeiting copper coin. — Sec. 14. ' Whosoever shall falsely 
 make or counterfeit any coin resembling or apparently intended to 
 resemble or pass for any of the Queen's current copper coin, shall, 
 in England and Ireland, be guilty of felony, and in Scotland of a 
 high crime and offence, and being convicted thereof shall be liable,' as 
 in s. 18. O) 
 
 Selling medals resembling current coin. — By the Counterfeit Medal 
 Act 1S83 (46 & 47 Vict. c. 45) § 2, ' If any person without clue author- 
 ity or excuse (the proof whereof shall lie on the person accused) 
 makes or has in his possession for sale, or offers for sale, or sells any 
 medal, cast coin, or other like thing, made wholly or partially of metal 
 or any metallic combination, and resembling in size, figure, and colour 
 any of the Queen's current gold or silver coin, or having thereon a 
 device resembling any device on any of the Queen's current gold or 
 silver coin, or being so formed that it can by gilding, silvering, 
 colouring, washing, or other like process, be so dealt with as to re- 
 semble any of the Queen's current gold or silver coin, he shall be 
 guilty of a misdemeanor, and on being convicted shall be liable to be 
 imprisoned for any term not exceeding one year with or without hard 
 labour.' Sec. 3. ' " The Queen's current gold or silver coin" includes 
 any gold or silver coin coined in or for any of Her Majesty's mints, 
 or lawfully current by virtue of any proclamation or otherwise in any 
 part of Her Majesty's dominions, whether within the United King- 
 dom or otherwise.' 
 
 Counterfeiting coin by officers in the mint. — With respect to the 
 offence of counterfeiting coin in general it may be observed, that not 
 only all such as counterfeit the King's coin without his authority, 
 but even such as are employed by him in the mint, come within the 
 statute, if for their own lucre they make the money of baser alloy, 
 or lighter than by their indentures they are authorized and bound to 
 do : for they can only justify their coining at all under such an 
 authority ; and if they have not pursued that authority, it is the 
 same as if they had none. But it is not any mistake in, weight or 
 alloy that will make them guilty ; the act must be wilful, corrupt, 
 and fraudulent, (nn) 
 
 What is a sufficient counterfeiting. — The monies charged to be 
 counterfeited must resemble the true and lawful coin : (o) but this 
 resemblance is a matter of fact of which the jury are to judge upon 
 the evidence before them ; the rule being, that the resemblance need 
 not be perfect, but such as may in circulation ordinarily impose upon 
 the world, (p) Thus a counterfeiting with some small variation in 
 the inscription, effigies, or arms, done probably with intent to evade 
 the law, is yet within it ; and so is the counterfeiting in a different 
 metal, if in appearance it be made to resemble the true coin, (q) 
 
 Where, on an indictment for uttering a counterfeit half-sovereign, 
 
 (n) This clause is taken from part of (o) 1 Hawk. P. C. c. 17, s. 81. 
 
 sec. 12 of the 2 Will. 4, c. 34. (p) 1 Hale, 178, 184, 211, 215. 
 
 (nn) 1 East, P. C. c. 4, s. 15, p. 166. \q) 1 East, P. C. c. 4, s. 13, p. 164, 
 
 1 Hale, 213. 1 Hawk. P. C. c. 17 s. 55. citing l MS. Sum. 50, and Ridgeley's case, 
 
 3 Inst. 16, 17. 4 Blac. Com. 84. Old Bailey, Dec. 1778.
 
 212 Of Counterfeiting Coin. [book ii. 
 
 the coin was, in reality, a Prince of Wales's medal ; and though on 
 one side it bore some resemblance to a good half-sovereign, having 
 Her Majesty's head and the usual inscription, on the other side was 
 the plume of the Prince of Wales, with the words ' Prince of Wales's 
 model half-sovereign,' and it was held that it was a question for the 
 jury whether this coin was intended by the maker to pass as a coun- 
 terfeit coin, or was merely designed for a plaything, a card-marker, 
 &c. (r). 
 
 It is quite clear that there will be a sufficient counterfeiting where 
 the counterfeit money is made to resemble coin, the impression on 
 which has been worn .away by time. In one case the shillings produced 
 in evidence were quite smooth, without the smallest vestige of either 
 head or tail, and without any resemblance of the shillings in circula- 
 tion, except their colour, size, and shape ; and the Master of the Mint 
 proved that they were bad, but that they were very like those shil- 
 lings the impression on which had been worn away by time, and 
 might very probably be taken by persons having less skill than him- 
 self for good shillings ; and the Court were of opinion that a blank 
 that is smoothed and made like a piece of legal coin, the impression 
 of which is worn out, and yet suffered to remain in circulation, is 
 sufficiently counterfeited to the similitude of the current coin of this 
 realm to bring the counterfeiters and coiners of such blanks within 
 the statute ; these blanks having some reasonable likeness to that 
 coin which has been defaced by time, and yet passed in circulation, (s) 
 In a subsequent case the counsel for the prisoners having objected, 
 upon the fact of no impression of any sort or kind being discernible 
 upon the shillings produced in evidence, that they were not counter- 
 feited to the likeness and similitude of the good and legal coin of the 
 realm, the judges were of opinion, that it was a question of fact 
 whether the counterfeit monies were of the likeness and similitude 
 of the lawful current silver coin called a shilling. And the jury 
 having so found it, the want of an impression was immaterial ; be- 
 cause, from the impression being generally worn out or defaced, it 
 was notorious that the currency of the genuine coin of that denom- 
 ination was not thereby affected ; the counterfeit therefore was perfect 
 for circulation, and possibly might deceive the more readily from 
 having no appearance of an impression : and in the deception the 
 offence consists, (t) Before the 2 Will. 4, c. 34, where the imitation 
 of the real coin had not proceeded so far as to fabricate a false coin 
 sufficiently perfect to be circulated, the offence of counterfeiting was 
 not complete. Thus, where the prisoner had forged the impression of 
 a half-guinea on a piece of gold, which was previously hammered, but 
 was not round, nor would pass in the condition it then was, upon 
 reference to the judges, it was held that the crime of counterfeiting 
 was incomplete, (u) And where the prisoners were convicted under 
 the 25 Edw. 3, c. 2, and it appeared that no one piece of the base 
 metal found upon them was in such a state as to make it passable, 
 the conviction was held to be wrong, (v) But by the 24 & 25 Vict. 
 
 (r) R. v. Byrne, 6 Cox, C. C. 475. (t) R. v. Welsh, 1 Leach, 364. 1 East. 
 
 Cranipton, J. P. C. c. 4, s. 13, p. 164. 
 
 (s) Wilson's case, Old Bailey, 1783 ; 1 (u) Varley's case, 1 Leach, 76. 1 East, 
 
 Leach, 285. P. C. c. 4, s. 13, p. 164. 2 Blac. Rep. 682. 
 
 (v) E. v. Harris, 1 Leach, 135.
 
 chap. I.] Of Counterfeiting Coin. 213 
 
 c. 99, s. 30, the offence of counterfeiting shall be deemed to be com- 
 plete, although the coin be not in a state fit to be uttered, or the 
 counterfeiting not finished or perfected, (w) The prisoner was in- 
 dicted under 24 & 25 Vict. c. 95, s. 13, for uttering a medal resem- 
 bling in size, figure, and colour, one of the Queen's current gold coins 
 called a half-sovereign. The medal was stated by a witness to be 
 'made of metal the same diameter as a half-sovereign, — somewhat 
 similar in colour. On the obverse there is the head of the Queen, 
 similar to that on a half-sovereign. The legend is entirely different 
 from that on a half sovereign, being " Victoria, Queen of Great 
 Britain," instead of " Victoria Dei Gratia." The medal is queried, 
 but the querling is round and not square.' At this point of his evi- 
 dence the witness accidentally dropped the medal, and it was lost. 
 No evidence was given of what was on the other side of the medal 
 nor was the medal shown to the jury. The court were all of opin- 
 ion that there was evidence that the medal resembled a half-sovereign 
 in size, colour, and figure, (x) 
 
 Colouring. — Upon an indictment on the 8 & 9 Will. 3, c. 26, s. 4 
 (now repealed), it appeared that the colour of silver was produced by 
 melting a small portion of good silver with a large portion of base 
 metal, and throwing it, after it had been cut up into round blanks, 
 into aqua fortis, wnich has the effect of drawing to the surface what- 
 ever silver there may be in the composition, and giving the metal 
 the colour and appearance of real silver. A doubt therefore arose, 
 whether this process of extracting the latent silver by the power of 
 the wash from the body to the surface of the blank was colouring 
 with ' a wash and materials ' within the meaning of the statute ; or 
 whether the Legislature did not intend such a colouring only as is 
 produced by some external application on the surface of the blank. 
 But the judges thought that this process of extracting the latent sil- 
 ver from the body to the surface of the base metal by the power of 
 aqua fortis was a colouring within the words of the statute ; (y) and 
 they also thought that it might be charged as a colouring with sil- 
 ver ; for the effect of the aqua fortis is to corrode the base metal, and 
 leave the silver only on the superficies ; and so the copper is coloured 
 or cased with silver, (z) 
 
 So though it was necessary that the blanks should be rubbed after 
 they were taken out of the wash, in order to give them the appear- 
 ance of silver, the preparing and steeping them in the wash was held 
 to be a colouring within the 8 & 9 Will. 3, c. 26, s. 4. The prisoner 
 was apprehended in the very act of steeping round blanks composed 
 of brass and silver in aqua, fortis : none of them were in a finished 
 state ; but many were taken out of the liquor, and others were found 
 dry. These blanks exhibited the appearance of lead, and some of 
 them had the impression of a shilling, and by rubbing them they 
 might be made perfectly to resemble silver coin ; but in their then 
 state the jury found that none of them would pass current. The 
 question was, whether the offence was completed, inasmuch as the 
 colour of silver had not been produced on any of the blanks. There 
 
 (w) Post, p. 217. (?/) R. v. Lavey, 1 Leach, 153. 
 
 (a-) R. v. Robinson, L. & C. 604 ; 34 iz) S. C, 1 East, R C. c. 4, s. 14. 
 
 L. J M. C. 176.
 
 214 Of Counterfeiting Coin. [book u. 
 
 was some difference of opinion amongst the judges upon a case re- 
 served. One judge said, he understood the words ' colour, &c.,' to 
 mean producing on the piece of metal the colour of silver, which was 
 not done here; for without rubbing, the money coined would not 
 pass : and another observed, that the word in the statute was ' 'pro- 
 ducing'' in the present tense, and not materials which would produce. 
 But the other judges thought the conviction right. They considered 
 that the offence was complete when the piece was coloured ; for it 
 was then coloured with materials which produce the colour of silver ; 
 and that it was not necessary that the piece so coloured should be 
 current, for the colouring of blanks was an offence within the clause. 
 And it was observed, that a contrary construction would prevent any 
 conviction until a wash was discovered, which would in the first in- 
 stance produce a perfect bright shilling or sixpence, (a) 
 
 Upon an indictment on the 2 Will. 4, c. 34, s. 4, which alleged that 
 the prisoner three sixpences ' feloniously did gild with materials cap- 
 able of producing the colour of gold,' it was proved that the prisoner 
 was apprehended in the act of gilding sixpences with gold, three of 
 which so gilt were found in the room where he was taken : it was 
 objected that the indictment was not proved, as the prisoner had used 
 gold and not materials capable of producing the colour of gold. It 
 was answered, that the latter words might be rejected ; to which it 
 was replied, that they could not, as they qualified the word gold, and 
 showed it was not used in the strict sense of the word. A verdict 
 having been directed for the Crown, the counsel for the prisoner 
 moved, in arrest of judgment, in case the objection should arise on 
 the record. Upon a case reserved, the judges present were unani- 
 mous that the indictment was proved, and all, except two, (b) con- 
 sidered the indictment good, (c) 
 
 Counterfeiting complete without uttering. — If there be a counter- 
 feiting in fraud of the King, the offence is complete before any utter- 
 ing, or attempt to utter, (d) 
 
 Procuring dies with intent to counterfeit foreign coin. — One count 
 charged the prisoner with unlawfully causing to be made two dies, 
 one of the obverse side, the other of the reverse side of a silver 
 half-dollar of Peru, with intent feloniously to make counterfeit Per- 
 uvian half-dollars ; another count charged him with attempting 
 feloniously to coin by making the dies, with intent to use them 
 in coining such counterfeit coins. The prisoner, without any au- 
 thority or license so to do, caused to be made by one Jackson, a die 
 sinker (who, though he executed the order, gave notice to the police, 
 and committed no offence against the law), the necessary dies for 
 making a counterfeit dollar of the Republic of Peru. The dies, 
 though suitable and necessary for making such counterfeit coin could 
 not alone produce it ; a press, copper blanks, galvanic battery, and a 
 
 (a) R. v. Case, 1 East, P. C. c. 4, s. 14. of gold or silver,' in the 8 & 9 Will. 3, c. 26, 
 
 1 Leach, 154, note (a). This case probably s. 4. C. S. G. 
 caused the nse of the terms, ' materials cap- (b) Littledale, J., and Parke, B. 
 
 able of producing the colour of gold or sil- {<•) R. v. Turner, 2 M. C. C. P. 42. 
 
 ver,' in the 2 Will. 4, c. 34, s. 4, instead of (d) 3 Inst. 61. 1 Hale, 215, 228. 1 
 
 the terms, 'materials producing the colour Hawk. c. 17, s. 55. 1 East, P. C. c. 4, 
 
 s. 13, p. 165.
 
 chap, f.l Of Counterfeiting Coin. 215 
 
 preparation of silver being also necessary for that purpose. The 
 prisoner had procured galvanic batteries, and had been in negotiation 
 for the purchase of a press and copper blanks for the aforesaid pur- 
 pose ; but he had not actually procured either press, blanks, or 
 preparation of silver. There was no doubt that the prisoner in- 
 tended to use the whole apparatus when procured in making counter- 
 feit Peruvian dollars, and the only doubt was whether he intended to 
 coin in Peru only, or in this country also ; and it was contended that, 
 if he only intended to make the coin in Peru, no offence had -been 
 committed; and even if he did intend to coin in this country, that 
 intention, though coupled with the act of causing the dies to be made 
 in pursuance of such intention, fell short of an attempt to commit a 
 felony. The jury found that the intention of the prisoner was to 
 cause to be made and procure the dies and other apparatus in order 
 therewith to coin counterfeit Peruvian half-dollars, and to make a 
 few only of the counterfeit coin in England by way of trying whether 
 the apparatus would answer before sending it out to Peru, to be there 
 used in making the counterfeit coin, and convicted the prisoner ; and 
 upon a case reserved, it was held that the conviction was right. This 
 was not an indictment for an attempt to commit a statutable offence ; 
 but the indictment was founded on a criminal intent coupled with an 
 act immediately connected with the offence. Nobody could doubt 
 that the prisoner was in possession of machinery necessarily con- 
 nected with the offence, for the express purpose of committing it, and 
 which was obtained, and could be obtained, for no other purpose. 
 No doubt the act was done with intent to commit a felony, and was 
 sufficient to support such an indictment as the present. It was an 
 act immediately connected with the offence, and the prisoner could 
 have no other object than to commit the offence, (e) 
 
 Punishment of principals in the second degree and accessories. — By 
 the 24 & 25 Vict. c. 99, s. 35, ' In the case of every felony punishable 
 under the Act, every principal in the second degree, and every acces- 
 sory before the fact, shall be punishable in the same manner as the 
 principal in the first degree is by this Act punishable; and every 
 accessory after the fact to any felony punishable under this Act shall 
 be liable to be imprisoned for any term not exceeding two years with 
 or without hard labour.' (/) 
 
 Accomplices or receivers, in those offences concerning the coin 
 which amount to felony, follow the general rule applicable to felony. 
 Two agree to counterfeit, and one does it in consequence of that 
 agreement; they are both guilty. One counterfeits, and another by 
 agreement beforehand afterwards puts it off; the latter is a principal : 
 so if he put it off afterwards, knowing that the other coined it ; for 
 that makes him an aider : so if he furnished the coiner with tools, or 
 materials for coining, (y) 
 
 Proof that a man occasionally visited coiners ; that the rattling of 
 
 (c) R. v. Roberts, Dears. C. C. 539. The would be so also. And see R. v. Harvey, 
 
 Court seem to have been clear that making L. R. 1 C. C. R. 284. 
 
 a few specimens to ascertain whether they (/) This clause is taken from the "2 Will, 
 
 would answer the purpose would have been 4, c. 34, s. 18. 
 
 a felony within the statute ; and that even (g) 1 East, P. C. c. 4, s. 31, p. 186. 
 
 making a few specimens to put in a cabinet
 
 216 Of Counterfeiting Coin. [book ii. 
 
 money was occasionally heard with them ; that he was seen counting 
 something as if it was money when he left them ; that, on coming to 
 the lodgings just after their apprehension, he endeavoured to escape, 
 and was found to have bad money about him ; is not sufficien evi- 
 dence to implicate him, as counselling, procuring, aiding, and abetting 
 the coining. Two women were indicted for colouring a shilling and 
 sixpence, and a man as counselling them, &c. The evidence against 
 him was, that he visited them once or twice a week ; that the rattling 
 of copper money was heard whilst he was with them ; that once he 
 was counting something just after he came out ; that on going to the 
 room just after their apprehension he resisted being stopped, and 
 jumped over a wall to escape ; and that there were then found upon 
 him a bad three-shilling piece, five bad shillings, and five bad six- 
 pences ; but upon a case reserved the judges thought the evidence 
 too slight to convict him. (h) 
 
 Venue. — Sec. 28. ' Where any person shall tender, utter, or put off 
 any false or counterfeit coin in one county or jurisdiction, and shall 
 also tender, utter, or put off any other false or counterfeit coin in any 
 other county or jurisdiction, either on the day of such first mentioned 
 tendering, uttering, or putting off, or within the space of ten days 
 next ensuing, (i) or where two or more persons, acting in concert in 
 different counties or jurisdictions, shall commit any offence against 
 this Act, every such offender may be dealt with, indicted, tried, and 
 punished, and the offence laid and charged to have been committed, 
 in any one of the said counties or jurisdictions, in the same manner 
 in all respects as if the offence had been actually and wholly com- 
 mitted within such one county or jurisdiction.' (j ) 
 
 The first part is introduced to remove a doubt which had risen 
 whether a person tendering, &c, coin in one jurisdiction, and after- 
 wards tendering, &c, coin in another jurisdiction, within sec. 10, 
 could be tried in either. As the offence created by that section is 
 only a misdemeanor, probably there was no substantial ground for 
 that doubt, but it was thought better to set the matter at rest. 
 
 Sec. 36. 'All indictable offences mentioned in this Act which shall 
 be committed within the jurisdiction of the Admiralty of England or 
 Ireland shall be deemed to be offences of the same nature and liable 
 to the same punishments as if they had been committed upon the 
 land in England or Ireland, and may be dealt with, inquired of, tried, 
 and determined in any county or place in England or Ireland in 
 which the offender shall be apprehended or be in custody, in the 
 same manner in all respects as if the same had been actually com- 
 mitted in that county or place, and in any indictment for any such 
 offence, or for being accessory to any such offence, the venue in the 
 margin shall be the same as if such offence had been committed in 
 such county or place, and the offence itself shall be averred to have 
 been committed "on the high seas;" provided that nothing herein 
 contained shall alter or affect any of the laws relatiug to the govern- 
 ment of Her Majesty's land or naval forces.' 
 
 (h) R. v. Isaacs, Hil. T. 1813. MS. (;) This clause is taken from the 2 Will. 
 
 Bayley, J. 4, c. 34, s. 15. 
 
 (i) The preceding part of this section is 
 new.
 
 chap, i.] Of Counterfeiting Coin. 217 
 
 What is sufficient proof of coin being counterfeit. — Sec. 29. ' Where, 
 upon the trial of any person charged with any offence against this 
 Act, it shall be necessary to prove that any coin produced in evidence 
 against such person is false or counterfeit, it shall not be necessary to 
 prove the same to be false and counterfeit by the evidence of any 
 moneyer, or other officer of Her Majesty's Mint, but it shall be suf- 
 ficient to prove the same to be false or counterfeit by the evidence of 
 any other credible witness.' (k) 
 
 Where the offence is complete — Sec. 30. ' Every offence of falsely 
 making or counterfeiting any coin, or of buying, selling, receiving, "pay- 
 ing, tendering, uttering, or putting off, or of offering to buy, sell, receive, 
 pay, litter, or put off, any false or counterfeit coin, against the pro- 
 visions of this Act, shall be deemed to be complete, although the 
 coin so made or counterfeited, or bought, sold, received, paid, tendered, 
 uttered, or put off, or offered to be bought, sold, received, paid, uttered, or 
 put off, shall not be in a fit state to be uttered, or the counterfeiting 
 thereof shall not be finished or perfected.' 
 
 This clause is taken from the 2 Will. 4, c. 34, s. 3, which was 
 limited in terms to making or counterfeiting gold or silver coin, and 
 consequently it was held that it did not apply to a case of selling 
 counterfeit coin. The words in italics have, therefore, been added in 
 order to include all cases of ' buying, selling,' &c. (I) 
 
 Power to apprehend persons found committing offences. — Sec. 31. ' It 
 shall be lawful for any person whatsoever to apprehend any person 
 who shall be found committing any indictable offence, or any high 
 crime and offence, or crime and offence, against this Act, and to con- 
 vey or deliver him to some peace officer, constable, or officer of police, 
 in order to his being conveyed as soon as reasonably may be before a 
 justice of the peace or some other proper officer, to be dealt with 
 according to law.' (m) 
 
 This clause is new, and clearly unnecessary, as far as it relates to 
 any felony or indictable misdemeanor, for there is no doubt whatever 
 that any person in the act of committing any such offence is liable 
 by the common law to be apprehended by any person ; but it was 
 introduced at the instigation of the Solicitors of the Treasury, as it 
 had been found that there was great unwillingness to apprehend in 
 such cases, in consequence of doubts that prevailed among the public 
 as to the right to do so. 
 
 The words, ' or officer of police,' were introduced in the House of 
 Commons quite unnecessarily, as without doubt every officer of 
 police is a peace officer ; and they render this clause inconsistent with 
 other clauses in some of the other Acts. 
 
 Fine and sureties for keeping the peace. — Sec. 38. 'Whenever any 
 person shall be convicted of any indictable misdemeanor punishable 
 under this Act the Court may, if it shall think fit, in addition to or in 
 lieu of any of the punishments by this Act authorised, fine the offen- 
 der, and require him to enter into his own recognizances, and to find 
 sureties, both or either, for keeping the peace and being of good be- 
 
 (k) This clause is taken from the 2 Will. (m) Sec. 33 provides for a notice of 
 
 4, c. 34, s. 17. action, tender of amends, &c. Sec. 32 takes 
 
 (I) R. y. Bradford, 2 C. & D. 41. away the certiorari, &c. Sec. 41 provides 
 
 for summary proceedings.
 
 218 Of Counterfeiting Coin. [book ii. 
 
 haviour ; and in case of any felony punishable under this Act, the 
 Court may, if it shall think fit, require the offender to enter into 
 his own recognizances and to find sureties, both or either, for keep- 
 ing the peace, in addition to any punishment by this Act authorised ; 
 provided that no person shall be imprisoned under this clause, for 
 not finding sureties, for any period exceeding one year.' (n) 
 
 Hard labour. — Sec. 39. ' Whenever imprisonment, with or with- 
 out hard labour, may be awarded for any indictable offence under 
 this Act, the court may sentence the offender to be imprisoned, or to 
 be imprisoned and kept to hard labour, in the common gaol or house 
 of correction.' 
 
 Solitary confinement. — Sec. 40. ' Whenever solitary confinement 
 may be awarded for any offence under this Act, the Court may direct 
 the offender to .be kept in solitary confinement for any portion or por- 
 tions of his imprisonment, or of his imprisonment with hard labour, 
 not exceeding one month at any one time, and not exceeding three 
 months in any one year.' 
 
 Costs. — Sec. 42. ' In all prosecutions for any offence against this 
 Act in England, which shall be conducted under the direction of the 
 Solicitors of Her Majesty's Treasury, the Court before which such 
 offence shall be prosecuted or tried shall allow the expenses of the 
 prosecution in all respects as in cases of felony ; and in all prosecu- 
 tions for any such offence in England which shall not be so con- 
 ducted it shall be lawful for such Court, in case a conviction shall 
 take place, but not otherwise, to allow the expenses of the pros- 
 ecution in like manner ; and every order for the payment of such 
 costs shall be made out, and the sum of money mentioned therein 
 paid and repaid, upon the same terms and in the same manner in all 
 respects as in cases of felony, (o) 
 
 Before the passing of this Act the costs of mint prosecutions were 
 paid by the Treasury wherever they were conducted by the Solicitors 
 of the Treasury ; but in no other case. As the Solicitors of the 
 Treasury were accustomed to employ attorneys in the country to 
 conduct these prosecutions, and they did not always like to pay the 
 witnesses before they had received the costs of the prosecution from 
 the Treasury, it sometimes happened that the witnesses did not get 
 their expenses till a considerable time after the trial, and the earlier 
 part of this clause was introduced in order that the attorneys might 
 at once obtain the costs of the prosecutions, and pay the witnesses 
 their expenses ; and, as in all mint prosecutions so conducted the 
 expenses were invariably paid, the first part of the clause is impera- 
 tive, and the Court must allow the expenses. 
 
 It sometimes also happened that private individuals conducted 
 mint prosecutions, after the officers of the mint had declined to pros- 
 ecute, and, considering the importance of bringing offenders in such 
 cases to justice, it was thought expedient to give the costs in some of 
 these cases ; the second part of the clause therefore gives the Court a 
 discretion to grant the costs in such cases, provided a conviction takes 
 place, but not otherwise. This provision will on the one hand en- 
 courage prosecutions where there are substantial grounds for them, 
 
 [a) This clause is new. (o) This clause is new.
 
 chap. I.] Of Counterfeiting Coin. 219 
 
 and on the other hand it will prevent speculative prosecutions where 
 the evidence is unsatisfactory. 
 
 Producing tools and base money in evidence. — In many instances 
 of offences relating to the counterfeiting coin, the Legislature have 
 made special provisions for securing the base coin, and also the tools 
 of the offenders ; in order that they may be produced in evidence, and 
 afterwards be disposed of in a proper manner, (p) 
 
 By the 24 & 25 Vict. c. 99, s. 27, ' If any person shall find or dis- 
 cover in any place whatever, or in the custody or possession of any 
 person having the same without lawful authority or excuse, any false 
 or counterfeit coin, resembling or apparently intended to resemble or 
 pass for any of the Queen's current gold, silver, or copper coin, or any 
 coin of any foreign prince, state, or country, or any instrument, tool, 
 or engine whatsoever, adapted and intended for the counterfeiting of 
 any such coin, or any filings or clippings, or any gold or silver bullion, 
 or any gold or silver in dust, solution, or otherwise, which shall have 
 been produced or obtained by diminishing or lightening any of the 
 Queen's current gold or silver coin, it shall be lawful for the person so 
 finding or discovering and he is hereby required to seize the same, 
 and to carry the same forthwith before some justice of the peace; 
 and where it shall be proved, on the oath of a credible witness before 
 any justice of the peace, that there is reasonable cause to suspect that 
 any person has been concerned in counterfeiting the Queen's current 
 gold, silver, or copper coin, or any such foreign or other coin as in 
 this Act before mentioned, or has in his custody or possession any 
 such false or counterfeit coin, or any instrument, tool, or engine 
 whatsoever adapted and intended for the making or counterfeiting of 
 any such coin, or any other machine used or intended to be used for 
 making or counterfeiting any such coin, or any such filings, clippings, 
 or bullion or any such gold or silver in dust, solution, or otherwise as 
 aforesaid, it shall be lawful for any justice of the peace, by warrant 
 under his hand, to cause any place whatsoever belonging to or in the 
 occupation or under the control of such suspected person to be searched, 
 either in the day or in the night, and if any such false or counter- 
 feit coin, or any such instrument, tool, or engine, or any such machine, 
 or any such filings, clippings, or bullion or any such gold or silver 
 
 (/.)) The Legislature has made other pro- ceive the same at the rate it was coined for ; 
 visions for the suppression of base coin, or and if any dispute shall arise whether the 
 coin inferior in value, where there is no coin so cut, broken, bent, or defaced be 
 criminal charge imputed to the person who diminished in manner aforesaid, or counter- 
 may happen to tender it. And by sec. 26 of feit, it shall be heard and finally determined 
 the 24 & 25 Vict. c. 99, ' Where any coin in a summary manner by any justice of the 
 shall be tendered as the Queen's current gold peace, who is hereby empowered to examine 
 or silver coin to any person who shall suspect upon oath as well the parties as any other 
 the same to be diminished otherwise than person, in order to the decision of such dis- 
 by reasonable wearing or to be counterfeit, pute ; and the tellers at the receipt of Her 
 it shall be lawful for such person to cut, Majesty's Exchequer, and their deputies and 
 break, bend, or deface such coin, and if any clerks, and the receivers general of every 
 coin so cut, broken, bent, or defaced shall branch of Her Majesty's revenue, are here- 
 appear to be diminished otherwise than by by required to cut, break, or deface, or cause 
 reasonable wearing, or to be counterfeit, the to be cut, broken, or defaced, every piece of 
 person tendering the same shall bear the counterfeit or unlawfully diminished gold 
 loss thereof ; but if the same shall be of due or silver coin which shall be tendered to 
 weight, and shall appear to be lawful coin, them in payment of any part of Her 
 the person cutting, breaking, bending, or Majesty's revenue.' And see 33 Vict. c. 10, 
 defacing the same is hereby required to re- s. 7.
 
 220 Of Impairing and Defacing Coin. [book ii. 
 
 dust, solution, or otherwise as aforesaid, shall be found in any place 
 so searched, to cause the same to be seized and carried forthwith 
 before some justice of the peace; and whensoever any such false or 
 counterfeit coin, or any such instrument, tool, or engine, or any such 
 machine, or any such filings, clippings, or Million, or any such gold or 
 silver in dust, solution or otherwise as aforesaid shall in any case what- 
 soever be seized and carried before a justice of the peace, he shall if 
 necessary, cause the same to be secured, for the purpose of being pro- 
 duced in evidence against any person who may be prosecuted fur any 
 offence against this Act ; and all such false and counterfeit coin, and 
 all instruments, tools, and engines adapted and intended for the mak- 
 ing or counterfeiting of coin, and all such machines, and all such fil- 
 ings, clippings, and bullion, and all such gold and silver in dust, solu- 
 tion, or otherwise as aforesaid, after they shall have been produced in 
 evidence, or when they have been seized, and shall not be required 
 to be produced in evidence, shall forthwith be delivered up to the 
 officers of Her Majesty's Mint, or to the solicitors of Her Majesty's 
 Treasury, or any person authorized by them to receive the same.' (q) 
 
 The parts in italics are introduced in order to provide for the seiz- 
 ure of filings of coin, gold or silver dust, and machines mentioned in 
 the preceding clauses of the Act. 
 
 The solicitors of the Treasury now superintend all mint prosecu- 
 tions, (r) 
 
 By the 33 Vict. c. 10, s. 5, no piece of gold, silver, copper, or bronze, 
 or of any metal or mixed metal of any value whatever, shall be made 
 or issued except by the mint as a coin or a token for money, or as 
 purporting that the holder thereof is entitled to demand any value 
 denoted thereon. Every person who acts in contravention of this 
 section shall be liable on summary conviction to a penalty not exceed- 
 ing twenty pounds. 
 
 Sec. II. 
 
 Impairing and Defacing Coin. 
 
 Impairing gold or silver coin, with intent. — The 24 & 25 Vict. C. 99, 
 s. 4, enacts that, ' Whosoever shall impair, diminish, or lighten any of 
 the Queen's current gold or silver coin, with intent that the coin so 
 impaired, diminished, or lightened may pass for the Queen's current 
 gold or silver coin, shall, in England and Ireland, be guilty of felony, 
 and in Scotland of a high crime and offence, and being convicted 
 thereof shall be liable, at the discretion of the Court, to be kept in 
 penal servitude for any term not exceeding fourteen years and not 
 less than three years, — or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labour, and with or without 
 solitary confinement.' (t) 
 
 (q) This clause is framed on 2 Will. 4, (r) See the interpretation clause, ante, 
 
 c. 34, s. 14; 37 Geo. 3, c. 126, s. 7; and 43 p. 208. 
 
 Geo. 3, c. 139, s. 7; as to the words ' without (0 See sec. 40, ante, p. 218. 
 
 lawful authority or excuse,' see R. v. Harvey, 
 L. R. 1 C. C. R. 284.
 
 CHAP. I.] Of Impairing and Defacing Coin. 221 
 
 This clause is taken from the 2 Will. 4, c. 34, s. 5, the words of 
 which were ' with intent to make the coin pass,' &c, which intent 
 never existed; for the coin was not impaired in order to make it pass, 
 but in order to obtain some metal from the coin, and that it might 
 nevertheless pass in circulation. The words in italics have therefore 
 been substituted for those of the former enactment. 
 
 Unlawful possession of filings or clippings of gold or silver coin. — 
 Sec. 5. ' Whoever shall unlawfully have in his custody or possession 
 any filings or clippings, or any gold or silver bullion, or any gold 
 or silver in dust, solution, or otherwise, which shall have been pro- 
 duced or obtained by impairing, diminishing, or lightening any of 
 the Queen's current gold or silver coin, knowing the same to have 
 been so produced or obtained, shall, in England and Ireland, be guilty 
 of felony, and in Scotland of a high crime and offence, and being con- 
 victed thereof shall be liable, at the discretion of the Court, to be 
 kept in penal servitude for any«term not exceeding seven years and 
 not less than three years. — or to be imprisoned for any term not 
 exceeding two years, with or without hard labour, and with or with- 
 out solitary confinement, (u) 
 
 Defacing coin by stamping words thereon. — Sec. 16. 'Whosoever 
 shall deface any of the Queen's current gold, silver, or copper coin, by 
 stamping thereon any names or words, whether such coin shall or 
 shall not be thereby diminished or lightened, shall, in England and 
 Ireland, be guilty of a misdemeanor, and in Scotland of a crime and 
 offence, and being convicted thereof shall be liable, at the discretion 
 of the Court, to be imprisoned for any term not exceeding one year, 
 with or without hard labour.' 
 
 This clause is taken from the 16 & 17 Vict. c. 102, s. 1, which con- 
 tained the words ' or shall use any machine or instrument for the 
 purpose of bending the same,' but it was considered that this pro- 
 vision was much too comprehensive, and therefore it was omitted. 
 
 Tender of coin so defaced not legal. — Sec. 17. 'No tender of pay- 
 ment in money made in any gold, silver, or copper coin so defaced 
 by stamping as in the last preceding section mentioned shall be 
 allowed to be a legal tender ; and whosoever shall tender, utter, or 
 put off any coin so defaced shall, on conviction thereof before two 
 justices, be liable to forfeit and pay any sum not exceeding forty 
 shillings : Provided that it shall not be lawful for any person to pro- 
 ceed for any such last-mentioned penalty without the consent, in Eng- 
 land or Ireland, of Her Majesty's Attorney-General for England or 
 Ireland respectively, or in Scotland of the Lord Advocate.' (v) 
 
 Searching for clippings of coin, &c, — With a view to more effectu- 
 ally prevent the clipping, diminishing, or impairing the current 
 coin of the kingdom, the 6 & 7 Will. 3, c. 17, s. 8, made provision for 
 breaking open houses and searching for bullion ; and for the pun- 
 ishment of the person in whose possession bullion was found, not 
 proving it to be lawful silver, and that the same was not before the 
 melting thereof coin nor clippings, (w) Provision concerning melting 
 
 (u) This clause is new. (w) These provisions seem to be repealed 
 
 (v) This clause is taken from the 16 & by the 59 Geo. 3, c. 49, s. 12. 
 
 17 Vict, a, 102, s. 2. See the interpretation 
 
 clause, ante, p. 208.
 
 222 Of Importing Counterfeit Coin. [book ii. 
 
 down coin were made by the 17 Edw. 4, c. 1, and 13 & 14 Car. 2, 
 c. 31. (x) And if money, false or clipped, be found in the hands of 
 any that is suspicions, he may be imprisoned till he hath found his 
 warrant per statutum de moneta. (y) 
 
 Sec. III. 
 Of Importing into the Kingdom Counterfeit or Light Money. 
 
 Importing counterfeit coin from beyond seas. — By the 24 & 25 Vict. 
 c. 99, s. 7, ' Whosoever, without laivful authority or excuse {the -proof 
 whereof shall lie on the party accused), shall import or receive into the 
 United Kingdom from beyond the seas any false or counterfeit coin 
 resembling or apparently intended to resemble or pass for any of the 
 Queen's current gold or silver coin, knowing the same to be false or 
 counterfeit, shall, in England and Ireland, be guilty of felony, and in 
 Scotland of a high crime and offence, and being convicted thereof shall 
 be liable, at the discretion of the Court, to be kept in penal servitude 
 for life or for any term not less than three years, — or to be impris- 
 oned for any term not exceeding two years, with or without hard 
 labour, and with or without solitary confinement.' (z) 
 
 The first words in italics were introduced for the reason mentioned 
 in the note to sec. 6. (a) 
 
 The words ' or receive ' were added to include cases where the 
 offender received coin which had come from abroad, but there was no 
 evidence to bring his offence within the term ' import.' 
 
 Under the 1 & 2 Ph. & M. c. 11 (now repealed), it was held that 
 the words ' false or counterfeit coin or money being current within 
 this realm.' referred to gold and silver coin of foreign realms, current 
 here by the sufferance and consent of the Crown, which must be by 
 proclamation, or by writ under the great seal. And the money, the 
 bringing in of which was prohibited by the 25 Edw. 3, st. 5, c. 2, and 
 1 & 2 Ph. & M. c. 11 (both now repealed) must be brought from some 
 foreign place out of the King's dominions into some place within the 
 same, (b) and not from Ireland or some other place subject to the 
 Crown of England, for though to some purposes they are distinct from 
 England, yet as the counterfeiting is punishable there as much as in 
 England, the bringing money from such places is not within those 
 Acts, (c) It may be observed also that these Acts were confined to 
 the importer, and did not extend to a receiver at second hand ; and 
 such importer must also have been averred and proved to have known 
 that the money was counterfeit, (d) 
 
 It seems to have been the better opinion, that it was not necessary 
 that such false money should be actually paid away or merchandized 
 
 (/') This Act and every Act in force be- (b) 1 East, P. C. c. 4, ss. 1, 4.5, 6,21, 
 
 fore its passing, whereby the melting, &c, 22. 
 
 of coin was prohibited, are repealed by the (c) 1 Hawk. c. 17, s. 87. 
 
 59 Geo. 3, c. 49, s. 11. (d) 1 Hale, 227, 228. 317. 1 Hawk. 
 
 (//) 3 Inst. 18. c. 17, ss. 86, 88. 1 East. P. C. c. 4, s. 22, 
 
 (:) This clause is taken from the 2 Will. p. 175. The words of the 25 Ed. 3, were, 
 
 4, c. 34, s. 6. 'if any man bring ;' of the 1 & 2 Ph. & M. 
 
 (a) Post. ' if any person shall bring.'
 
 chap, i.] Of Exporting Counterfeit Coin. 223 
 
 with, for the words of the 25 Edw. 3 are, to ' merchandize or making 
 payment,' &c., which only import an intention to do so, and are fully 
 satisfied whether the act intended be performed or not ; if) and it is 
 clear that bringing over money counterfeited according to the simili- 
 tude of foreign coin was treason within the 1 & 2 Ph. & M. c. 11. (/) 
 
 Importing foreign counterfeit coin. — By the 24 & 25 Vict. C. 99, 
 s. 19, ' Whosoever, without lawful authority or excuse (the proof 
 whereof shall lie on the parti/ accused), shall bring or receive into the 
 United Kingdom (y) any such false or counterfeit coin resembling or 
 apparently intended to resemble or pass for any gold or silver coin of 
 any foreign prince, state, or country, knowing the same to be false or 
 counterfeit, shall, in England and Ireland, be guilty of felony, and in 
 Scotland of a high crime and offence, and being convicted thereof 
 shall be liable, at the discretion of the Court, to be kept in penal 
 servitude for any term not exceeding seven years and not less than 
 three years, — or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary 
 confinement.' (h) 
 
 From the words of the statute, an importation of counterfeit 
 foreign coin, with a knowledge that it is counterfeit, is clearly suffi- 
 cient, without any actual uttering. The present clause omits the 
 words ' to the intent to utter the same,' which were in the former 
 Act. 
 
 It seems that this statute does not provide for the case of a person 
 collecting the base money therein mentioned from the vendors of it 
 in this country, with intent to utter it within the realm, or the do- 
 minions of the realm, (i) 
 
 Sec. IV. 
 
 Of Exporting Counterfeit Money. 
 
 By the 24 & 25 Vict. c. 99, s. 8, 'Whosoever, without lawful 
 authority or excuse (the proof whereof shall lie on the party ac- 
 cused), shall export, or put on board any ship, vessel, or boat for 
 the purpose of being exported from the United Kingdom, any false 
 or counterfeit coin, resembling or apparently intended to resemble or 
 pass for any of the Queen's current coin, knowing the same to be false 
 or counterfeit, shall, in England and Ireland, be guilty of a misde- 
 meanor, and in Scotland of a crime and offence, and being convicted 
 
 (e) 1 Hawk. c. 17, s. 89. But Lord Coke which were in the 25 E. 3, nor the words 
 
 and Lord Hale seem to have thought differ- ' to the intent to utter or make payment 
 
 ently. 3 Inst. 18. 1 Hale, 229. But see with the same,'whieh were in the 1 &25 Ph. 
 
 1 East, P. C. c. 4, s. 22, pp. 175, 176, where & M. The crime, therefore, seems now to 
 
 it is said that though the best trial and proof consist in importing counterfeit coin know- 
 
 of an intent may be by the act done, yet it ing it to be counterfeit. C. S. G. 
 
 may also be evinced by a variety of circum- (</) See the note to sec. 6, post. 
 
 stances, of which the jury are to judge. \h) This clause is framed from the 37 
 
 (/) 1 Hawk. c. 17, s. 89. It is to be ob- Geo. 3, c. 126, s. 3. 
 
 served, that the new statute has neither the (i) 1 East, P. C. c. 4, s. 23, p. 177. 
 words 'to merchandize or make payment,'
 
 224 Of Exporting Counterfeit Coin. [book ii. 
 
 thereof shall be liable, at the discretion of the Court, to be impris- 
 oned for any term not exceeding two years, with or without hard 
 labour, and with or without solitary confinement.' (k) 
 
 This clause will include all cases of exporting counterfeit colonial 
 coin. 
 
 (k) This clause is new. As to hard labor, &c, see ante, p. 218. See the interpretation 
 clause, mite, p. 208.
 
 CHAPTER THE SECOND. 
 
 OF FRAUDS RELATING TO BULLION, AND OF COUNTERFEITING 
 
 BULLION. 
 
 Sec. I. 
 Of Frauds relating to Bullion. 
 
 Bullion signifies properly either gold or silver in the mass ; but is 
 sometimes used to denote those metals in any state other than that of 
 authenticated coin ; comprising in this latter sense gold and silver- 
 wares and manufactures. Many statutes have been passed for the 
 prevention of frauds with respect to such bullion, by creating offences 
 in making, working, putting to sale, exchanging, selling, or exporting 
 any gold or silver manufactures of less fineness than the standards 
 respectively fixed at the time by the several Acts. But it is not in- 
 tended to make any particular mention of those statutes ; (a) the 
 punishments inflicted by them being in general certain penalties and 
 forfeitures, or, in default of payment, commitment to the house of 
 correction. The knowingly exposing for sale and selling wrought gold 
 under the sterling alloy as gold of the true standard, though indict- 
 able in goldsmiths, is a private imposition only in a common person, 
 and the party injured is left to his civil remedy, (b) 
 
 It is conceived also that offenders fraudulently affixing public and 
 authentic marks on goods of a value inferior to such tokens are liable 
 to suffer at common law upon an indictment for a cheat. J. Fabian, 
 a working goldsmith, was indicted for falsifying plate, by putting in 
 too much alloy, and then corrupting one of the assay master's servants 
 to help him to the proper marks, with which he stamped his plate, 
 and sold it to the goldsmiths ; and being convicted, he was fined £100 
 and adjudged to stand three times in the pillory ; and was also fore- 
 judged of his trade that he should not use that trade again as a master 
 workman. This judgment must have been at common law. (c) 
 
 The offences of counterfeiting the assay marks on bullion or plate, 
 or transposing such marks from one piece of manufacture to another, 
 will be mentioned in a subsequent part of the work. 
 
 Provisions were made by several statutes to prevent the fraudulent 
 exportation of bullion, but these statutes are either repealed, or their 
 provisions do not fall within the scope of this work. 
 
 (a) See them collected in 1 East, P. C (b) R. v. Bower, Cowp. 323. 
 
 c. 4, s. 32, pp. 188 to 194. The 28 Ed. 1, (c) Fabian's case, Old Bailey, Dec. Sess. 
 
 st. 3, c. 20, was repealed by the 19 & 20 1664. 1 East, P. C. c. 4, s. 34, p. 194. Kel. 
 Vict. c. 64. 39. 
 
 vol. i. — 15
 
 CHAPTER THE THIRD. 
 
 OF THE MAKING, MENDING, OE HAVING IN POSSESSION ANY 
 INSTRUMENTS FOR COINING. 
 
 BY V the 24 & 25 Vict. c. 99, s. 24, 'Whosoever, without lawful 
 authority or excuse (the proof whereof shall lie on the party accused), 
 shall knowingly make or mend, or begin or proceed to make or mend, 
 or buy or sell, or have in Ms custody or possession, any puncheon, 
 counter-puncheon, matrix, stamp, die, pattern, or mould, in or upon 
 which there shall be made or impressed, or which will make or im- 
 press, or which shall be adapted and intended to make or impress, 
 the figure, stamp, or apparent resemblance of both or either of the 
 sides of any of the Queen's current gold or silver coin, or of any coin 
 of any foreign prince, state, or country, or any part or parts of both or 
 either of such sides ; or shall make or mend, or begin or proceed to 
 make or mend, or shall buy or sell, or have in his custody or posses- 
 sion, any edger, edging or other tool, collar, instrument, or engine 
 adapted and intended for the marking of coin round the edges with 
 letters, grainings, or other marks or figures apparently resembling 
 those on the edges of any such coin as in this section aforesaid, 
 knowing the same to be so adapted and intended as aforesaid ; or shall 
 make or mend, or begin or proceed to make or mend, or shall buy or 
 sell, or have in his custody or possession, any press for coinage, or any 
 cutting engine for cutting, by force of a screw or of any other contri- 
 vance, round blanks out of gold, silver, or other metal or mixture of 
 metals, or any other machine, knowing such press to be a press for 
 coinage, or knowing such engine or machine to have been used, or to 
 be intended to be used, for or in order to the false making or counter- 
 feiting of any such coin as in this section aforesaid, shall, in England 
 and Ireland, be guilty of felony, and in Scotland of a high crime and 
 offence, and being convicted thereof shall be liable, at the discretion 
 of the Court, to be kept in penal servitude for life, or for any term 
 not less than three years, — or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labour, and with or without 
 solitary confinement.' (a) 
 
 Lawful authority or excuse. — It has been decided upon this sec- 
 tion that the word 'excuse ' includes authority, and that it is unneces- 
 sary to allege or prove any intent. The felony is knowingly to have 
 possession of a die, and the guilty knowledge required is that of being 
 in possession of the die, contrary to the provisions of the Act of 
 
 («) This clause is framed from the 2 and machines than those mentioned in the 
 Will. 4, c. 34, 8. 10, and is extended to tools former enactment, and to tools for cutting 
 for making foreign coin, and to other tools blanks out of mixed metals.
 
 chap, in.] Of the Making, Etc., Instruments for Coining. 227 
 
 Parliament, that is, without lawful authority or excuse. A guilty 
 intention to use the dies is not necessary, (b) 
 
 Where two galvanic batteries were found in the prisoner's house, 
 with white metal and other things plainly indicating that the}' bad 
 been used for coining, and it was proved that counterfeit coin is 
 electro-plated before it is put in circulation, and that that is gener- 
 ally done by the aid of galvanic batteries, it was held that the bat- 
 teries were machines within the meaning of this section, (c) 
 
 Conveying tools or monies out of the mint -without authority. — 
 Sec. 25. ' Whosoever, without lawful authority or excuse (the proof 
 whereof shall lie on the party accused), shall knowingly convey out 
 of any of Her Majesty's mints any puncheon, counter-puncheon, 
 matrix, stamp, die, pattern, mould, edger, edging or other tool, collar, 
 instrument, press, or engine used or employed in or about the coining 
 of coin, or any useful part of any of the several matters aforesaid, or 
 any coin, bullion, metal, or mixture of metals, shall, in England and 
 Ireland, be guilty of felony, and in Scotland of a high crime and 
 offence, and being convicted thereof shall be liable ' (d) to the same 
 punishment, as in s. 24. 
 
 Making or having tools for coining copper. — Sec. 14. ' Whosoever, 
 without lawful authority or excuse (the proof whereof shall lie on the 
 party accused ), shall knowingly make or mend, or begin or proceed to 
 make or mend, or buy or sell, or have in his custody or possession, 
 any instrument, tool, or engine adapted and intended for the counter- 
 feiting any of the Queen's current copper coin, shall, in England and 
 Ireland, be guilty of felony, and in Scotland of a high crime and 
 offence, and being convicted thereof shall be liable, at the discretion 
 of the Court, to be kept in penal servitude for any term not exceed- 
 ing seven years, and not less than three years, or to be imprisoned for 
 any term not exceeding two years, with or without hard labour, and 
 with or without solitary confinement, (e) 
 
 Decisions on repealed statutes. — Several points arose as to the tools 
 or instruments which were within the words of the 8 & 9 Will. 3. 
 Where the prisoner was indicted for having in his custody a press for 
 coinage without any lawful authority, a question was raised whether 
 a press for coinage was one of the tools or instruments within that 
 clause of the Act on which the indictment was founded ; and a ma- 
 jority of the judges held that it was. (/) In another case, the pris- 
 oner was convicted of having in his custody, without lawful excuse, 
 one mould made of lead, on which was impressed the resemblance of 
 one of the sides of a shilling, viz., the head side of a shilling ; and it 
 was submitted to the judges whether the mould found in the prisoner's 
 custody was comprised under the general words ' other tool or instru- 
 ment before mentioned' so as to make the unlawful custody of it high 
 treason ; and also whether, if it were so comprised, it should not have 
 been laid in the indictment to be a tool or instrument in the words of 
 the Act. And the judges were unanimously of opinion that this 
 
 (b) R. v. Harvey, L. R. 1 C. C. R. 284. (d) This clause is taken from the 2 WilL 
 40 L. J. M. C. 63. 4, c. 34, s. 11. 
 
 (c) R. v. Gover, 9 Cox, C. C. 282. The (e) This clause is taken from part of sec 
 Common Serjeant, after consulting Keat- 12 of the 2 Will. 4, c. 34. 
 
 ing, J. (/) Bell's case, Fost. 430.
 
 228 Of the Making, Me., Instruments for Coining, [book ii. 
 
 mould was a tool or instrument mentioned in the former part of the 
 statute, and therefore comprised under the general words ; and that 
 as a mould is expressly mentioned by name in the first clause of the 
 Act which respects the making or mending, it need not be averred to 
 be a tool or instrument so mentioned, (g) 
 
 The prisoner was indicted for having in his custody a puncheon 
 made of iron and steel? upon which was impressed the resemblance 
 of the head side of a shilling, without lawful authority, &c. Seve- 
 ral puncheons were found in the prisoner's lodgings, together with 
 a quantity of counterfeit money, and he had them knowingly for 
 the purposes of coining. These puncheons were ready for use : 
 but it was impossible to say that the shillings which were found 
 were actually made with these puncheons, the impressions being 
 too faint to be exactly compared ; but they had the appearance of 
 having been made with them. The manner of making these pun- 
 cheons was as follows : a true shilling was cut away to the outline of 
 the head ; that outline was fixed on a piece of steel, which was filed 
 or cut close to the outline, and this made the puncheon ; the pun- 
 cheon made the die, which is the counter-puncheon ; a puncheon is 
 complete without letters, but it may be made with letters upon it ; 
 though from the difficulty and inconvenience it is never so made at 
 the mint ; but after the die is struck the letters are engraved on it ; 
 a puncheon alone without the counter-puncheon, will not make the 
 figure ; but to make an old shilling or a base shilling current, nothing 
 more is necessary than the instrument produced. They may be used 
 for other purposes, such as making seals, buttons, medals, or other 
 things, where such impressions are wanted. Eleven of the judges 
 (absente, De Grey, C. J.) were unanimously of opinion that this was 
 a puncheon within the meaning of the Act ; for the word ' puncheon ' 
 is expressly mentioned in the statutes, and will, by the means of the 
 counter-puncheon or matrix, ' make or impress the figure, stamp, re- 
 semblance, or similitude of the current coin ; ' and these words do not 
 mean an exact figure, but if the instrument impress a resemblance in 
 fact, such as will impose on the world, it is sufficient, whether the 
 letters are apparent on the puncheon or not ; otherwise the Act would 
 be quite evaded, for the letters would be omitted on purpose. The 
 puncheon in question was one to impress the head of King William ; 
 and the shillings of his reign, though the letters were worn out, were 
 
 (g) Lennard's case, 1 Leach, 90. 1 East, as will make and impress the similitude, &c. 
 P. C. c. 4, s. 17, p. 170. Another point was as the matrix, die, and mould ; and such on 
 afterwards raised in this case upon the form which the same is made and impressed, as a 
 of the indictment. The doubt was, whether puncheon, or counter-puncheon, or pattern. 
 the mould which was found in the prisoner's But a great majority of the judges were ot 
 custody, it having only the resemblance of a opinion that this evidence sufficiently main- 
 shilling inverted, viz. the convex parts of the tained the indictment ; because the stamp of 
 shilling being concave in the mould, and. vice the current coin was certainly impressed on 
 versa, the head or profile being turned the the mould in order to form the cavities 
 contrary way of the coin, and all the letters of thereof. They agreed, however, that the 
 the inscription reversed, was not properly an indictment would have been more accurate 
 instrument which would make and impress had it charged that ' he had in his custody 
 the resemblance, stamp, &c, rather than an a mould that would make and impress the 
 instrument on which the same were 'made similitude,' &c, and in this opinion some, 
 and impressed, ns laid in this indictment, the who otherwise doubted, acquiesced. 
 statute seeming to distinguish between such
 
 chap, in.] Of the Making, Etc., Instruments for Coining. 229 
 
 current coin of the kingdom. The puncheon made an impression like 
 them, and the coin stamped with it would resemble them on the head 
 side, though there were no letters. This was compared to the case 
 mentioned by Sir Matthew Hale, (h) that the omission or addition of 
 words in the inscription of the true seals, for the purpose of evading 
 the law, would not alter the case, (i) 
 
 The part of the 8 & 9 Will. 3, c. 26, which related to instrument- to 
 mark the edges of coins, was not confined to such instruments as were 
 in use when the Act passed ; but extended to newly-invented instru- 
 ments, which would produce the same effect ; and it was not confined 
 to such instruments, as, used by the hand unconnected with any other 
 power, would produce the effect. A collar therefore, marking the edge 
 of coin, by having the coin forced through it by machinery, is an instru- 
 ment within the 8 & 9 Will. 3, c. 26, though this mode of marking the 
 edges is of modern invention, and though the collar cannot be used 
 by itself, but must be used in conjunction with other machinery, (j 
 
 It was decided, that having a tool or instrument (of such sort as is 
 included in the 8 & 9 Will. 3, c. 26) in possession for the -purpose of 
 coining foreign gold coin not current here, was not within that stat- 
 ute ; (/,■) but it is expressly included in the present clause. 
 
 Where a die calculated to make shillings is made by an innocent 
 agent, the party procuring him to make such die is the principal. 
 The prisoner was indicted for feloniously making a die which would 
 impress the resemblance of the obverse side of a shilling. The pris- 
 oner applied to a die-sinker to sink dies for counters for two whist 
 clubs, stating that it was their practice to play with counters with 
 one side resembling coins, and that they wished to have counters 
 stamped by dies made under the following directions : — ' Four dies 
 for whist counters, obverse head of Queen Victoria, as in the shilling 
 coin. Reverse. " Blandford Whist Club, established 1800." Obverse 
 the shilling, as in coin, with wreath, &c. Reverse, " Exeter Whist 
 club, established 1800." ' The die-sinker, entertaining suspicions, ap- 
 plied to the agent of the Mint, and communicated the order to him. 
 The agent sent to the officers of the Mint in London, and the die- 
 sinker was by them directed to execute the prisoner's order. The 
 prisoner afterwards desired to have the obverse of one of the pieces, 
 and the obverse of the other finished first, and they were so. When 
 they were finished, they formed a die for the coining of a shilling. 
 For the prisoner, it was objected that he could not be convicted, as 
 he had not himself done anything in the making of the die, and that 
 he was not answerable in this form of charge for the act of the die- 
 sinker ; that the die-sinker having acted under the instructions of the 
 Mint, no felony whatever had been committed, and that the prisoner 
 should have been indicted for a misdemeanor in inciting the die-sinker 
 to commit a felony. But, upon a case reserved, the judges thought 
 the die-sinker an innocent agent, and held the conviction good. ( / ) 
 
 (h) 1 Hale, 184. 2 Hale, 212, 215. (;') R. v. Moore, R. &M. 122 ; S. C, 2C. 
 
 Robinson's case, 2 Roll. Rep. 50. 1 East, & P. 205. 
 
 P. C. c. 2, s. 25, p. 86. (1-) Bell's ease, 1 East, P. C. c. 4, s. 17, 
 
 (0 Ridgelay's case, 1 Leach, 189. 1 East, p. 169: Fost. 430. 
 P. C. c. 4, s. 18, p. 171. (I) R. o Bannen, 2 M. C. 0. K. 309. 1 
 
 C. & K. 295.
 
 230 Of the Making, Etc., Instruments for Coining, [book ii. 
 
 Evidence. — On an indictment for having in possession a die made of 
 iron and steel, proof of a die made of either material will be sufficient; 
 and it seems that if the indictment state that the die was made of iron, 
 steel, and other materials, proof that it was made of any material 
 would be sufficient ; and that it would not be necessary even to prove 
 the exact material. The indictment was for having in possession a 
 die made of iron and steel, a witness who saw the die said it was 
 made of iron ; another witness, who had not seen it, said that dies 
 were usually made of steel, and that iron dies would not stand ; and 
 the judges held that this evidence would support the indictment, 
 for it was immaterial to the offence of what the die was made, and 
 proof of a die either of iron or steel, or both, would satisfy this 
 charge, (m) 
 
 In proceeding upon the 8 & 9 Will. 3, c. 26, it was not necessary 
 to prove that money was actually made with the instrument in ques- 
 tion, (u) 
 
 The having tools for coining in possession, with intent to use them, 
 is a misdemeanor at common law. (o) 
 
 It seems that the degree of similitude to the real coin which the 
 tools or instrument must be capable of impressing in order to bring 
 the case within the statute, must be governed by considerations sim- 
 ilar to those which have been stated with respect to the counterfeit 
 coin itself, (p ) Whether the instrument in question be calculated to 
 impress the figure, stamp, resemblance, or similitude of the coin cur- 
 rent is a question for the jury ; and it is clear, that the offence is not 
 confined to an exact imitation of the original and proper effigies of 
 the coin, (q) 
 
 Upon an indictment which alleges that a prisoner feloniously had 
 in his possession a mould having the resemblance of the obverse side 
 of a shilling impressed upon it, it must be proved that the entire 
 impression was upon the mould. The prisoner was charged in one 
 count with having in his possession a mould, ' upon which was im- 
 pressed the figure and apparent resemblance of one of the sides (that 
 is to say) the obverse side of the King's current coin called a shil- 
 ling,' and in another count the word ' reverse ' was substituted for 
 ' obverse ; ' the moulds when produced appeared not to have a com- 
 plete impression of the obverse and reverse sides of a shilling, but 
 only the outside rim, and a slight portion of the other parts of the 
 impression ; the entire impressions, however, appeared to have been 
 upon them at one time, but part had been obliterated. It was held, 
 that if the jury believed that no more than part of the impression 
 was impressed upon the moulds while the prisoner was in posses- 
 sion of them, he ought to be acquitted, (r) But where an indict- 
 ment charges that the prisoner made a mould, which was intended 
 to impress the resemblance of the obverse side of a shilling, it is 
 sufficient to prove that the prisoner made a mould, which would 
 
 (m) R. v. Oxford, East. T. 1819. MS. But see the remarks on this case, ante, 
 
 Bayley, J., and R. & R. 382. S. P. R. v. p. 198. 
 
 Philips, R. & E. 369. (p) Ante, p. 211. 
 
 (a) Ridgelay's case, 1 East, P. C. c. 4, (q) 1 East, P. C. c. 4, s. 18, p. 171. 
 
 s. 18, p. 172. (r) R. v. Foster, 7 C. & P. 494, Patteson, 
 
 (o) R. v. Sutton, Rep. temp. Hardw. 370. J.
 
 chap, in.] Of the Making, Etc., Instruments for (Joining. 231 
 
 make a part of the impression. One count charged the prisoner with 
 making a mould, ' which said mould was intended to make and im- 
 press the figure and apparent resemblance ' of the obverse side, and 
 another the reverse side, of a shilling ; the evidence being the same 
 as in the former case ; it was held, that the term ' intended ' did not 
 mean in a state to make an entire impression, and therefore if the 
 prisoner had only begun to make, the intention to make the whole 
 might be inferred, though only part was actually made, and conse- 
 quently that the evidence was sufficient. (5) 
 
 But where upon an indictment for having in possession a mould, 
 upon which was made the figure of one of the sides of a shilling, it 
 appeared that the mould had a perfect impression on one side of it ; 
 but that there was no channel, through which the metal runs, and the 
 previous case was cited; Maule, J., held that a mould must be a thing 
 by means of which a person may be able to make a coin ; and that 
 a thing by means of which coin cannot be made cannot be a mould ; 
 for it requires something to be done to make it a mould. The proof, 
 therefore, was insufficient. As to the words ' any part or parts ' con- 
 tained in the clause, they did not refer to any part of the mould, but 
 to any part of the impression, (t) 
 
 Where a mould was made to resemble the whole of one side of a 
 coin, which had been worn partly away by use, an indictment under 
 the 2 Will. 4, c. 34, s. 10, might charge the possession of a mould on 
 which was impressed the figure of one of the sides of such coin, as 
 the words ' part or parts ' of the sides in that section applied to cases 
 where several moulds were used to make one side of a coin, (u) 
 
 An indictment charging that the prisoner had in his possession a 
 mould ' upon which was made and impressed the figure ' of one of 
 the sides of a coin, is bad for not showing that the figure was on 
 the mould at the time when the prisoner had it in his possession. 
 The words ' then and there ' should be introduced before the word 
 ' made.' (u) 
 
 Weeks and two other men and two women were indicted for hav- 
 ing in their possession a mould impressed with one side of a half- 
 crown. Weeks had occupied a house for a month, and the police one 
 night went to the house and found the other prisoners there. The 
 men attacked the police, whilst the women snatched up something 
 which they threw into the fire. The police preserved part of this, 
 which proved to be fragments of a plaster of Paris mould of a half- 
 crown, parts of which were still wet. Weeks shortly afterwards came 
 to the house. The women called out to him that the police were 
 there. He nevertheless came in. The house had two rooms on each 
 floor, and a quantity of plaster of Paris was found in a cupboard up 
 stairs, with several bottles of liquid. In a cupboard down stairs an 
 iron ladle, such as might have been used for melting metal, was 
 found ; on the hearth in one of the rooms up stairs was found a 
 small portion of white metal and some fragments of plaster of Paris 
 moulds. Thirteen days before Weeks had passed a bad half-crown ; 
 but there was no evidence to show that it was made in the mould 
 
 (s) R. v. Foster, 7 C. & P. 495, Patteson, (u) R. v. Richmond, 1 C. & K. 240, Rolfe, 
 
 J. B. See R. v. Silcot, 3 Mod. 280. 
 
 (t) R. v. Macmillan, 1 Cox, C. C. 41.
 
 232 Of the Making, Etc., Instrument* for Coining, [book ii. 
 
 found in the house. The jury found that Weeks knew that the 
 mould was in the house. It was held that Weeks was rightly con- 
 victed, as the mould was found in the house of which he was the 
 master, and that the evidence of the uttering of the half-crown by 
 him was rightly admitted to establish the scienter, (v) 
 
 On an indictment against husband, wife, and boy aged ten years, for 
 having in possession a mould on which was impressed the obverse 
 side of a shilling, it appeared that the boy was apprehended whilst 
 passing a counterfeit half-crown, and on the officer going to the house 
 where he said he resided the husband was found in an upper room. 
 In the lower room the mould and various coining implements were 
 found, and whilst the officer was searching the wife came in, and 
 soon afterwards broke up a mould used in casting counterfeit shil- 
 lings ; on her counterfeit money was found, but none on her husband. 
 Talfourd, J., held that as the husband occupied the room in which 
 the mould was found, primd facie he must be presumed to be in pos- 
 session of what the room contained ; but that presumption might be 
 rebutted, and the jury must consider all the circumstances, and see 
 whether they satisfied them that the trade was carried on there with 
 his sanction. If they were satisfied that the husband was in posses- 
 sion of the mould, they ought to acquit the wife, as she could not in 
 law be said to have any possession separate from her husband ; but 
 if they thought that the criminality was on her part alone, and that 
 he was entirely guiltless of any participation in her conduct, she 
 might be convicted. If they thought she broke the mould to screen 
 him from detection, that would not affect the case. Either husband 
 or wife might be convicted on this evidence, but not both. As to the 
 boy, it would be going too far to say that he was a joint possessor with 
 either of his parents, (w) 
 
 (v) R. v. Weeks, L. & C. 18. (w) R. v. Boober, 4 Cox, C. C. 272.
 
 CHAPTER THE FOURTH. 
 
 OF UTTERING, TENDERING, ETC., COUNTERFEIT COIN. 1 
 
 In some cases formerly the putting off counterfeit money might 
 amount to treason : as if A. counterfeited the gold or silver coin 
 current, and by agreement before that counterfeiting B. was to take 
 off and vent the counterfeit money, B. was an aider and abettor to 
 such counterfeiting, and consequently a principal traitor within the 
 law. (a) And in the case of the copper coin, B. acting a similar part 
 was an accessory before the fact to the felony, within the statute 11 
 Geo. 3, c. 40 (now repealed), (b) And if B., knowing that A. had 
 counterfeited money, put off this false money for him after the fact, 
 without any such agreement precedent to the counterfeiting, he seems 
 to be as a receiver of A. because he maintains him. (c) 
 
 If A. counterfeited money, and B. knowing the money to be coun- 
 terfeited uttered the same for his own benefit, B. was neither guilty 
 of treason, nor misprision of treason. But he might be proceeded 
 against under the 15 Geo. 2, c. 28 (now repealed), before which stat- 
 ute he was only liable to be punished as for a cheat and misde- 
 meanor, (d) Where the defendant was indicted for ' unlawfully 
 uttering and tendering in payment to T. H. ten counterfeit halfpence, 
 knowing them to be counterfeit,' and convicted on a count laying this 
 generally, upon reference to all the judges they held it was not an 
 indictable offence, (e) And upon the principles which have been men- 
 tioned in a former part of this work, (/) the unlawful procuring of 
 counterfeit coin with intent to circulate it, though no act of uttering 
 be proved, is a misdemeanor , and the possession of counterfeit coin 
 
 (a) 1 Hale, 214. false, is mentioned as a misdemeanor in the 
 
 (b) 1 East, P. C. c. 4, s. 26, p. 178. recital to the 15 Geo. 2, c. 28, s. 2. There is 
 
 (c) 1 Hale, 214. also a precedent for a misdemeanor at common 
 
 (d) 1 East, P. C. c. 4, s. 26, p. 179. 1 law, in uttering, and causing to be ut- 
 Haie, 214. See precedents of indictments tered, guineas filed and diminished as good 
 for a misdemeanor at common law in utter- guineas: Cro. Circ. Comp. 317 (7th edit.), 
 ing a counterfeit half-guinea : Cro. Circ. and 2 Chit. Crim. Law, 1 16 ; and also a 
 Comp. 315 (7th edit.). Starkie, 466, 2 precedent for a misdemeanor at common law 
 Chit. Crim. Law, 116. See also a prece- in selling counterfeit Dutch guilders : Cro. 
 dent of an indictment for a misdemeanor at Circ. Comp. 313 (7th edit.), 2 Chit. dim. 
 common law, against a man for uttering a Law, 119, 120. 
 
 counterfeit sixpence, and having another (e) Cirwan's case, Oxford Sum. Ass. 
 
 found in his custody, Cro. Cir. Comp. 315, 1794, MS. Jud. 1 East, P. C. c. 4, s. 28 
 
 (7th edit.), 2 Chit. Crim. Law, 117. The p. 182; 2 Leach, 834, note (a). 
 uttering of false money, knowing it to be (/) Ante, p. 198. 
 
 American Note. 
 1 See Harper v. S, 8 Humph. 93. Brown r. P, 4 Gilm. 439. Fox v. S, 5 How. 
 (U. S.) 410. U. S. v. Marigold, 9 How. (IT. S.) 560.
 
 234 Of Uttering Counterfeit Coin of the Realm. [book ii. 
 
 unaccounted for was held to be evidence of an unlawful procurement 
 with intent to circulate, (g) 
 
 But the uttering, or tendering in payment of counterfeit money 
 is now provided for. 
 
 Sec. I. 
 Of tittering &c, Counterfeit Coin of the Realm. 
 
 Uttering counterfeit gold or silver coin. — By the 24 & 25 Vict. C. 
 99, s. 9, ' Whosoever shall tender, utter, or put off any false or coun- 
 terfeit coin, resembling or apparently intended to resemble or pass for 
 any of the Queen's current gold or silver coin, knowing the same to 
 be false or counterfeit, shall, in England and Ireland, be guilty of a 
 misdemeanor, and in Scotland of a crime and offence, and being con- 
 victed thereof shall be liable, at the discretion of the Court, to be 
 imprisoned for any term not exceeding one year, with or without hard 
 labour, and with or without solitary confinement.' (h) 
 
 Uttering, accompanied by possession of other counterfeit coin, or fol- 
 lowed by a second uttering. — Sec. 10. ' Whosoever shall tender, 
 utter, or put off any false or counterfeit coin resembling, or appar- 
 ently intended to resemble or pass for any of the Queen's current 
 gold or silver coin, knowing the same to be false or counterfeit, and 
 shall, at the time of such tendering, uttering, or putting off, have in 
 his custody or possession, besides the false or counterfeit coin so 
 tendered, uttered, or put off, any other piece of false or counterfeit 
 coin resembling or apparently intended to resemble or pass for any of 
 the Queen's current gold or silver coin, or shall, either on the day of 
 such tendering, uttering, or putting off, or within the space of ten 
 days then next ensuing, tender, utter, or put off any false or counter- 
 feit coin resembling or apparently intended to resemble or pass for 
 any of the Queen's current gold or silver coin, knowing the same to 
 be false or counterfeit, shall, in England and Ireland, be guilty of a 
 misdemeanor, and in Scotland of a crime and offence, and being con- 
 victed thereof shall be liable, at the discretion of the Court, to be 
 imprisoned for any term not exceeding two years, with or without 
 hard labour, and with or without solitary confinement.' if) 
 
 Having three or more pieces of counterfeit gold or silver coin in 
 possession, &c, with intent, &c. — Sec. 11. ' Whosoever shall have in 
 his custody or possession three or more pieces of false or counterfeit 
 coin resembling or apparently intended to resemble or pass for any of 
 the Queen's current gold or silver coin, knowing the same to be false 
 or counterfeit, and with intent to utter or put off the same or any of 
 them, shall, in England and Ireland, be guilty of a misdemeanor, and 
 
 (g) R. v. Fuller & Robinson, ante, p. 199. ante, p. 218. See the interpretation clause, 
 
 The possession in this case was under partic- ante, p. 208. 
 
 ularly suspicious circumstances ; the coin (i) This clause is taken from the 2 Will. 
 
 being wrapped up in parcels with soft paper 4, c. 34, s. 7. The words ' any other piece ' 
 
 to prevent it from rubbing. are substituted for ' one or more piece or 
 
 (h) This clause is taken from the 2 Will. pieces,' and the words 'any false or counter- 
 
 4, c. 34, s. 7. As to hard labour, &c, see feit coin' for 'any more or other false or 
 
 counterfeit coin.'
 
 chap. IV.] Of Uttering Counterfeit Coin of the Realm. 235 
 
 iii Scotland uf a crime and offence, and being convicted thereof shall 
 be liable, at the discretion of the Court, to be kept in penal servitude 
 for the term of three years, or to be imprisoned for any term not ex- 
 ceeding two years, with or without hard labour, and with or without 
 solitary confinement.' (j) 
 
 Uttering after a previous conviction. — Sec. 12. 'Whosoever having 
 been convicted, (k) either before or after the passing of this Ad, of any 
 such misdemeanor or crime and offence as in any of the last three 
 preceding sections mentioned, or of any felony or high crime and 
 offence against this or any former Act relating to the coin, shall after- 
 wards commit any of the misdemeanors or crimes and offences in any 
 of the said sections mentioned, shall, in England and Ireland, be guilty 
 of felony, and in Scotland of a high crime and offence, and being con- 
 victed thereof shall be liable, at the discretion of the Court, to be kept 
 in penal servitude for life or for any term not less than three years, — 
 or to be imprisoned for any term not exceeding two years, with or 
 without hard labour, and with or without solitary confinement.' 
 
 This clause is taken from the 2 Will. 4, c. 34, ss, 7, 8, but those 
 sections only applied to offences committed after a conviction for a 
 misdemeanor : but it was expedient to extend the clause to convic- 
 tions after a previous conviction for felony ; for such previous convic- 
 tion rendered the offender deserving of at least as high a punishment 
 as if he had been previously convicted of any misdemeanor mentioned 
 in any of the three preceding sections, and it sometimes happened 
 that it was easier to prove a previous conviction for felony than for 
 such a misdemeanor ; as the former might have taken place in the 
 same county where the subsequent offence was committed, but not 
 the latter. 
 
 Evidence of previous conviction. — Sec. 37. 'Where any person shall 
 have been convicted of any offence against this Act, or any former Act 
 relating to the coin, and shall afterwards be indicted for any offence 
 against this Act committed subsequent to such conviction, it shall be 
 sufficient in any such indictment, after charging such subsequent of- 
 fence, to state the substance and effect only (omitting the formal part) 
 of the indictment and conviction for the previous offence ; and a certi- 
 ficate containing the substance and effect only (omitting the formal 
 part) of the indictment and conviction for the previous offence, purport- 
 ing to be signed by the clerk of the, court or other officer having or 
 purporting to have the custody of the records of the court where the 
 offender was first convicted, or by the deputy of such clerk or officer, 
 shall, upon proof of the identity of the person of the offender, be suf- 
 ficient evidence of the previous conviction, without proof of the signa- 
 ture or official character or authority of the person appearing to have 
 signed the same, or of his custody or right to the custody of the rec- 
 ords of the court, and for every such certificate a fee of six shillings 
 and eightpence, and no more, shall be demanded or taken ; and the 
 
 {j) This clause is taken from the 2 Will, prisoner had been found guilty, and released 
 
 4, c. 34, s. 8, with the addition of the words on recognizance to come up for judgment 
 
 in italics. when called upon, it was held that this was 
 
 (fr) The expression "convicted" is satis- a conviction within the meaning of the sec- 
 
 iied by a plea or finding of "guilty," and tion. R. v. Blaby (1894), 1 Q. B. 170. 
 does not mean " sentenced." So where a
 
 23G Of Uttering Counterfeit Coin of the Realm, [book ii. 
 
 proceedings upon any indictment for committing any offence after a 
 previous conviction or convictions shall be as follows ; (that is to say). 
 the offender shall, in the first instance, be arraigned upon so much only 
 of the indictment as charges the subsequent offence, and if he plead not 
 guilty, or if the Court order a plea of not guilty to be entered on his be- 
 half, the jury shall be charged, in the first instance, to inquire concern- 
 ing such subsequent offence only ; and if they find him guilty, or if 
 on arraignment he plead guilty, he shall then, and not before, be asked 
 whether he had been previously convicted as alleged in the indict- 
 ment, and if he answer that he had been so previously convicted, the 
 Court may proceed to sentence him accordingly, but if he deny that 
 he had been so previously convicted, or stand mute of malice, or will 
 not answer directly to such question, the jury shall then be charged 
 to inquire concerning such previous conviction or convictions, and in 
 such case it shall not be necessary to swear the jury again, but the 
 oath already taken by them shall for all purposes be deemed to ex- 
 tend to such last-mentioned inquiry ; Provided that if upon the trial 
 of any person for any such subsequent offence such person shall give 
 evidence of his good character, it shall be lawful for the prosecutor, 
 in answer thereto, to give evidence of the conviction of such person 
 for the previous offence or offences, before such verdict of guilty 
 shall be returned, and the jury shall inquire concerning such pre- 
 vious conviction or convictions at the same time that they inquire 
 concerning such subsequent offence.' 
 
 This clause is principally new. Under the 2 Will. 4, c. 34, it was 
 necessary in an indictment for a subsequent offence, to set out at 
 length the previous indictment, &c, and to give in evidence a copy of 
 that indictment, &c. ; this was very objectionable, and therefore this 
 clause has provided for a short statement in the indictment, and for 
 a certificate containing the substance and effect of the former indict- 
 ment, &c. ; it has also provided for the proceedings on the arraign- 
 ment, and in the same manner as on an indictment for larceny after 
 a previous conviction for felony. 
 
 The words ' after charging the subsequent offence ' were inserted 
 in order to render it absolutely necessary always to charge the sub- 
 sequent offence or offences first in the indictment, and after so doing 
 to allege the previous conviction or convictions. This was the invari- 
 able practice on the Oxford Circuit, and the Select Committee of the 
 Commons were clear that it ought to be universally followed, so that 
 the previous conviction should not be mentioned, even by accident,, 
 before a verdict of guilty of the subsequent offence had been de- 
 livered. 
 
 Mode of proceeding. — The proceedings on the arraignment and 
 trial are now to be as follows : — 
 
 The defendant is first to be arraigned on that part only of the 
 indictment which charges the subsequent offence ; that is to say, he 
 is to be asked whether he be guilty or not guilty of that offence. If 
 he plead not guilty, or if the Court order a plea of not guilty to be 
 entered for him under the 7 & 8 Geo. 4, c. 28, s. 2, or 9 Geo. 4, c. 54, 
 s. 8, (I), where he stands mute or will not answer directly to the 
 charge, then the jury are to be charged in the first instance to try 
 the subsequent offence only. If they acquit of that offence, the case
 
 chap, iv.] Of Uttering Counterfeit Coin of the Realm. 
 
 >zi 
 
 is at an end ; but if they find him guilty of the subsequent offence, 
 or if lie plead guilty to it on arraignment, then the defendant is to 
 be asked whetber he has been previously convicted as alleged, and if 
 he admit that he has, he maybe sentenced accordingly; but if he 
 deny it, or stand mute of malice, or will not answer directly to such 
 question, then the jury are to be charged to try whether he has been 
 so previously convicted, and this may be done without swearing them 
 again, and then the previous conviction is to be proved in the same 
 manner as before this Act passed. (I) 
 
 Where the indictment charged a felonious uttering after a previous 
 conviction, the jury found the prisoner guilty of the uttering but not 
 guilty of the previous conviction, it was held that this was a verdict 
 of not guilty of the felony charged, and that the prisoner could not 
 be convicted of the misdemeanor of uttering upon that indict- 
 ment, (m) 
 
 A doubt has been raised as to the mode of proceeding where a pris- 
 oner is indicted after this Act came into operation for an offence against 
 the former Act. Where the prisoner was indicted for feloniously ut- 
 tering counterfeit coin on the 19th of October, 1861, after a previous 
 conviction, and tried in the November following, the Recorder and 
 Common Serjeant held that the proceedings at the trial must be as 
 before the new Act passed, (n) But where the same question arose 
 in an ordinary case of felony, Byles, J., was of opinion that, as far as 
 the offence was concerned, the offence was governed by the former 
 statute ; but as to the procedure at the trial, that was to be regulated 
 by the Act which was in force at the time of the trial, (o) But 
 Martin, B., is said to have subsequently held that the former view 
 was correct. ( p ) 
 
 It is clear from the terms of the clause that the certificate is 
 admissible, if it be apparently regularly framed, without any ad- 
 ditional evidence. 
 
 Two cases are reported, in which it is said that Cresswell. J., held 
 that, where a certificate was produced purporting to be signed by a 
 clerk of the peace, there must be some evidence in addition that the 
 certificate is genuine and comes from the proper custody, as by proof 
 of the handwriting, or that the document came from the office of the 
 clerk of the peace, (q) 
 
 (Z) See also the note, Greaves' Cr. Acts, sec. 3 of 24 and 25 Vict. c. 95, as to all of- 
 
 199 (2nd edit.) And this has now been de- fences committed before the 1st of Nov. 1861, 
 
 cided to be the correct mode of proceeding, and that section, in addition, expressly pro- 
 
 although the general practice appeared to be vides that every such offence ' shall be dealt 
 
 to prove the previous conviction in the first with, tried,' &c, in the same manner as if 
 
 instance, in order to prove the offence to be the repealing Act had not passed ; and sec. 
 
 a felony. R. v. Martin, L. R. 1 C. C. R. 37 of the Coin Act and sec. 116 of the Lar- 
 
 214 ; 39 L. J. M. C. 31. R. v. Goodwin, ceny Act provide in the commencement for 
 
 10 Cox, C. C. 534. the indictment for offences against those 
 
 (m) R. v. Thomas, 44 L. J. M. C. 42. Acts, and the subsequent parts of those sec- 
 
 L. R. 2 C. C. R. 141. 13 Cox, C. 0. 52. tions ought to be held to apply to those 
 
 The prisoner was in fact charged with and cases only. See the note, Greaves' Cx. 
 
 tried for a felony, and the jury found him Acts, 199, (2nd ed.). C. S. G. 
 
 guilty of a misdemeanor only. (q) R. v. Whale, 1 Cox, C. C. 69. R. v. 
 
 (n) R. r. Montrion, 9 Cox, C. C. 27. Stone, ibid. 70. These cases are veryprob- 
 
 (o) Anonymous, 9 Cox, C. C. 28. ably misreported, as it is quite clear that no 
 
 (p) Anonymous, ibid. It seems quite such evidence is required, and the universal 
 
 clear that Byles, J., fell into a misappre- practice has been to the coutrar}'. See 
 
 hensiou. The old Acts are all kept alive by vol. iii. Evidence.
 
 238 Of Uttering Counterfeit Coin of the Realm, [book ii. 
 
 The proviso as to giving evidence of the previous conviction, if the 
 prisoner give evidence of his good character, remains unaltered. 
 
 If the prisoner, whether by himself or his counsel, attempts to 
 prove a good character for honesty, either directly, by calling wit- 
 nesses, or indirectly, by cross-examining the witnesses for the Crown, 
 the prosecution may give the previous conviction in evidence against 
 the prisoner, (r) If. however, a witness for the prosecution were 
 asked by the prisoner's counsel some question, which has no refer- 
 ence to character, and he happened to say something favourable to 
 the prisoner's character, the prisoner would not be said to give evi- 
 dence as to his character, and the previous conviction ought not to be 
 admitted, (s) 
 
 Uttering base copper coin. — Sec. 15. ' Whosoever shall tender, 
 utter, or put off any false or counterfeit coin resembling or apparently 
 intended to resemble or pass for any of the Queen's current copper coin, 
 knowing the same to be false or counterfeit, or shall have in his cus- 
 tody or possession three or more pieces of false or counterfeit coin 
 resembling or apparently intended to resemble or pass for any of the 
 Queen's current copper coin, knowing the same to be false or counter- 
 feit, and with intent to utter or put oft the same or any of them, 
 shall, in England and Ireland, be guilty of a misdemeanor, and in 
 Scotland of a crime and offence, and being convicted thereof shall be 
 liable, at the discretion of the Court, to be imprisoned for any term 
 not exceeding one year, with or without hard labour, and with or 
 without solitary confinement.' (t) 
 
 Decisions on repealed statutes. — The prisoner was indicted for 
 uttering a counterfeit coin intended to resemble a piece of the cur- 
 rent coin called a groat. All the witnesses called the coin a four- 
 penny-piece, except the Inspector for the Mint, who called it a 
 groat, and said it had had that name, he believed, from the earliest 
 period. It had the word ' fourpence ' upon it, but the original name 
 was groat in the time of Edward III. They were not then the same 
 size and weight as this. He had heard them called groats ; they 
 were called groats as well as fourpenny pieces in the proclamation. 
 It was contended for the prisoner that the coin was not proved by 
 legal evidence to be a groat, the proclamation not having been pro- 
 duced. Maule, J., (Erskine, J., being present,) in summing up, said: 
 ' A groat is a common word belonging to our own mother tongue, such 
 as " uttering," " public-house," " half-pint," and many other expres- 
 sions ; and you are here as Englishmen to use your own knowledge 
 of your own language ; and if, understanding the matter without 
 any evidence, you are satisfied that a fourpenny-piece and a groat 
 are the same thing, then the prisoner is rightly indicted. It is very 
 true that a groat in Edward the Third's time weighed a great deal 
 more than a fourpenny-piece does now ; and so it is with respect to 
 other coins. Things have kept their names, though they have changed 
 their value.' (u) 
 
 (r) R. v. Shrimpton, 2 Den. C. C. 319. ter, it clearly would not render the convic- 
 R. v. Gadbury, 8 C. & P. 676. tion admissible. See ante, p. 72. 
 
 (?) Per Lord Campbell, R. v. Shrimpton, (t) This clause is taken from the 2 Will. 
 
 supra. So if a witness were to volunteer 4, c. 34, s. 12. 
 
 any evidence of the prisoner's good charac- (u) R. v. C'onnell, 1 C & K. 190. See 
 
 ante, p. 25.
 
 chap, iv.] Of Uttering Counterfeit Coin of the Realm. 239 
 
 Under the 8 & 9 Will. 3, c. 26, s. 6, which had only the words 
 ' take, receive, pay, or put off,' there must have been an actual passing 
 or getting rid of the money, and not merely an attempt to do so. The 
 prisoner had carried a large quantity of counterfeit shillings to the 
 house of a Mrs. Levey, which she agreed to receive from him, and 
 which he agreed to put off to her at the rate of twenty-nine shillings 
 for every guinea. In pursuance of this bargain, the prisoner laid a 
 heap of counterfeit shillings on a table, and Mrs. Levey proceeded to 
 count them out at the rate before-mentioned ; and had counted out 
 three parcels, containing eighty-seven counterfeit shillings, for which 
 she was to pay the prisoner three guineas ; but before she had paid 
 him, and while the counterfeit money lay upon the table, the officers 
 entered the room and apprehended them. Mrs. Levey swore that she 
 had bought the three parcels of shillings, and was going to pay the 
 prisoner three guineas for them at the moment they were detected. 
 This was ruled not to be a completion of the offence charged, and the 
 prisoner was acquitted, (v) But this case would clearly be within 
 the new Act, which has the word ' tender ' in it. 
 
 Upon an indictment under the 2 Will. 4, c. 34, s. 7, for ' uttering and 
 putting off ' a counterfeit shilling, it appeared that the prisoner went 
 into a shop and asked to purchase some coffee and sugar, and in pay- 
 ment of the same he put on the counter the coin in question, when 
 the shopkeeper took up the coin and told the prisoner it was a bad 
 one. The prisoner then left the shop, leaving the shilling behind him, 
 but without the coffee and sugar, and it was held that the charge of 
 uttering and putting off was proved by the evidence, (w) 
 
 If the names of the persons to whom the money was put off can 
 be ascertained, they ought to be mentioned, and laid severally in the 
 indictment : but if they cannot be ascertained, the same rule will 
 apply which prevails in the case of stealing the property of persons 
 unknown. (.';) 
 
 The words of the 15 Geo. 2, c. 28, s. 2, ' utter or tender in payment ' 
 being in the disjunctive, were held to apply to an uttering of counter- 
 feit money, though not tendered in payment, but passed by the com- 
 mon trick called ringing the changes. The prosecutor having bargained 
 with the prisoner, who was selling fruit about the streets, to have tive 
 apricots for sixpence, gave him a good shilling to change. The pris- 
 oner put the shilling into his mouth, as if to bite it in order to try its 
 goodness ; and returning a shilling to the prosecutor, told him it was a 
 bad one. The prosecutor gave him another good shilling, which he 
 also affected to bite, and then returned another shilling, saying it was 
 not a good one. The prosecutor gave him another good shilling, with 
 which he practised this trick a third time; the shillings returned by 
 him being in every instance bad. The Court held that the words of 
 
 (c) Wooldridge's case, 1 Leach, 307. 1 putting off ten pieces of counterfeit gilt 
 
 East, P. C. c. 4, s. 27, p. 179. I have left money like guineas, to divers persons un- 
 
 this case, as it might be useful if an indict- known ; Holt, C. J., said, that the names 
 
 ment omitted the word ' tender.' C. S. G. of the persons ought to be mentioned and 
 
 (w) R. v. Welch, 2 D. C. C. Pu 78. See laid severally ; yet he tried the prisoner, and 
 
 R. v. Ion, 2 Den. C. C. 475. she was convicted. Probably the names of 
 
 (") 1 East, P. C. c. 4. s. 27, p. 180, the persons to whom the money was put off 
 
 citing a case from MS. Tracy, of a woman could not be ascertained, 
 who was indicted at the Old Bailey, 1702, for
 
 240 Of Uttering Counterfeit Coin of the Realm, [book ii. 
 
 the statute were sufficient to include this case ; and that uttering and 
 tendering in payment were two distinct and independent acts, (y) 
 
 It was once held that the uttering must either be with intent to 
 defraud the party receiving the money, or with intent that that party 
 should pass it as the agent of the utterer. Upon an indictment on 
 2 Will. 4, c. 34, s. 7, against husband and wife for uttering a coun- 
 terfeit half-crown, it appeared that a woman asked the female prisoner 
 to give her something, as her children were without food, and the male 
 prisoner gave her twopence, and told her that his wife would give her 
 something more, on which she gave the woman the bad half-crown in 
 question, telling her to get what she could for her children ; it was held 
 that, although in the statute there are no words with respect to de- 
 frauding, yet in the proof it is necessary to go beyond the mere words 
 of the statute, and to show an intention to defraud some person. 
 There might be cases of a party giving a person a piece of counter- 
 feit money, and at the same time telling the person that it was bad, 
 and yet he would still be liable to be convicted on an indictment like 
 the present, if a case falling within the mere words of the statute were 
 sufficient, (z) 1 
 
 But where on an indictment for uttering counterfeit coin, it ap- 
 peared that the prisoner had given the coin to a girl with whom he 
 had had connection, Lord Denman, C. J., and Coltman, J., held that 
 if the prisoner gave the coin to the girl under the circumstances 
 proved, knowing it to be counterfeit, he was guilty of the offence 
 charged ; that the preceding decision was not in point, as that was a 
 case of charity ; but that there were great doubts as to the correct- 
 ness of that ruling, (a) And B. v. Page (b) is said to have been 
 overruled, and that ' the intent is inferred by law,' in like manner as 
 ' if a forged instrument is put away in order to get money or credit, 
 that amounts to an uttering.' (c) 
 
 An indictment on the 15 G-eo. 2, c. 28, charged the prisoner in the 
 first count with having, on the 15th December, uttered to one G. S. a 
 counterfeit half-crown, knowing it to be so ; and in the second count 
 with having, on the said 15th December, uttered another counterfeit 
 half-crown to the same person ; and the prisoner was convicted on both 
 counts. The question was whether the uttering the counterfeit money 
 twice on the same day being stated in the hvo counts, the Court could 
 pronounce the greater punishment inflicted by the third section of the 
 statute, or must give only the smaller punishment inflicted by the 
 second section ; and the judges held that this indictment was not 
 sufficient to subject the prisoner to the larger penalty, as for uttering 
 
 (y) Frank's case, 2 Leach, 64. In any case a part}' may not be defrauded 
 
 (z) R. v. Page, 8 C. & P. 122, Lord by taking base coin, as lie may pass it again, 
 
 Abinger, C. B. As every person is taken to but still the probability is that he will be 
 
 intend the probable consequence of his act, defrauded, and that is sufficient. C. S. G. 
 
 and as the probable consequence of giving a (a) Anonymous, 1 Cox, (.'. C. 250. 
 
 piece of bad money to a beggar is that that (b) Supra. 
 
 beggar will pass it to some one else, and (c) Per Alderson, B., in E. v. Ion, 2 
 
 thereby defraud that person; qucere, whether Den. C. C. 48.4. 
 
 this case rests upon satisfactory grounds ? 
 
 Americas Note. 
 
 1 In .America, losing money at play has been held to be a 'passing' of the money. 
 Smith v. Beeler, 1 Brevard, 482.
 
 chap, iv.] Of Uttering Counterfeit Coin of the Realm. 241 
 
 two pieces of counterfeit coin on the same day, there being no distinct 
 averment of that fact, id) But where two utterings are charged in 
 one count of the indictment, on a certain day therein named, the day 
 will be held to be material, and the fact of an uttering twice on the 
 same day to be sufficiently averred. The indictment charged that the 
 prisoner on the 1-lth of February, uttered base coin to W. 0. ; and that 
 on the said 1-ith February he uttered to J. L. other base coin, and 
 it was held sufficient to warrant the higher punishment ; the utter- 
 ings, on the face of the indictment, appearing to be on the same day. 
 And the judges held, that though when the day is not material, the 
 fact may be proved on a day different from the day laid, yet where 
 the day is not indifferent, the precise time laid must be proved : and 
 that in this case it must be taken that it was proved that the defen- 
 dant uttered counterfeit coin at two different times of the same 
 day. 0) 
 
 On a conviction of two separate utterings, in two counts, one judg- 
 ment of two years' imprisonment under sec. 7 of the 2 Will. 4, c. 34, 
 is bad. The first count charged the prisoner with uttering on the 2nd 
 of December a counterfeit shilling ; the second count charged him with 
 uttering another counterfeit shilling on the same day and at the same 
 place, and he was convicted of both utterings, and sentenced to two 
 years' imprisonment, and, upon a case reserved, the judges were of 
 opinion that the sentence was incorrect, and that there should have 
 been consecutive judgments of one year's imprisonment each. (/) 
 
 For the purpose of proving the act charged in the indictment to have 
 been done knowingly, it is the practice to receive proof of more than 
 one uttering committed by the party about the same time, though only 
 one uttering be charged in the indictment. This is in conformity with 
 the practice upon indictments for disposing of and putting away forged 
 bank notes, knowing them to be forged ; (g) upon one of which the 
 counsel for the prisoners, objecting to such evidence, contended that 
 it would not be allowed upon an indictment for uttering bad money ; 
 and stated that the proof in such case was always exclusively confined 
 to the particular uttering charged in the indictment. But Thomson, B., 
 said, that he by no means agreed in the conclusion of the prisoners' 
 counsel, that the prosecutor could not give evidence of another uttering 
 on the same day to prove the guilty knowledge. ' Such other uttering,' 
 he observed, ' cannot be punished until it has become the subject of 
 a distinct and separate charge ; but it affords strong evidence of the 
 knowledge of the prisoner that the money he uttered was bad. If 
 a man utter a bad shilling, and fifty other bad shillings are found 
 upon him, tins would bring him within the description of a common 
 
 (d) Tandy's case, 2 Leach, 833. 1 East, (/) R. v. Robinson, R. & M. C. C. R. 
 P. C.c. 4, s. 29, pp. 182, 184. Eyre, C. J., 413. In R. v. Roberts, Carthew, 226, 
 Buller, J., and Heath, J., were absent "when Holt, C. J., said, 'Each offence requires a 
 this opinion was given, viz., Hil. T. 1799. separate and distinct punishment according 
 The judges also thought it advisable to give to the quality of the offence.' See this case, 
 judgment of imprisonment for six months post, Extortion. See ante, p. 85. 
 
 singly, and not on each of the counts. And (g) R. v. Whiley, 2 Leach, 983. 1 New 
 
 see Smith's case, 2 Leach, 856. R. 92. TattershalTs case, cited in R. v. 
 
 (e) Martin's case. Derby Lent Ass. 1801, Whiley. And see Ball's case, 1 Campb. 325, 
 coram Graham, B., decided by the judges in and other cases, vol. iii. Evidence. 
 
 June, in the same year. 2 Leach, 223. 1 
 East, P. C. Addend, xviii. MS. Bayley, J. 
 VOL. i. — 16
 
 242 Of Uttering Counterfeit Coin of the Realm, [book ii. 
 
 utterer: (h) but if the indictment do not contain that charge, yet 
 these circumstances may be given in evidence on any other charge of 
 uttering, to show that he uttered the money with a knowledge of its 
 being bad.' (i) So, upon an indictment for uttering a counterfeit shil- 
 ling, the fact of five other counterfeit shillings having been found in 
 the prisoner's possession five days afterwards, has been held admis- 
 sible in order to show guilty knowledge, (j) 
 
 In order to prove guilty knowledge, both previous and subsequent 
 utterings of the same and of different kinds of coin are admissible. On 
 an indictment for uttering a counterfeit half-crown on the 12th of 
 December, that uttering was proved, and the uttering of another coun- 
 terfeit half-crown on the 11th of December, and evidence was admitted 
 of an uttering of a counterfeit shilling on the 4th' of January, although 
 it was objected that a subsequent uttering of a different species of coun- 
 terfeit coin was not admissible to show guilty knowledge at a prior 
 time ; and it was held that this evidence was properly received. In 
 order to show guilty knowledge, it would not be sufficient merely to 
 prove some other dishonest act ; but here the uttering of the bad silver 
 was so connected with the offence charged, as to make the evidence of 
 it admissible, although the coin was of a different denomination ; and 
 the difference of the denomination goes to the weight of the evidence, 
 but does not affect its admissibility, (k) 
 
 On an indictment on the 2 Will. 4, c. 34, s. 8 (now repealed), for 
 having in possession counterfeit crowns and half-crowns with intent 
 to utter the same, it appeared that there were found in different 
 pockets of the prisoner's dress four counterfeit crowns, all electro- 
 plated, of the same date and same mould, each wrapped in a separate 
 piece of paper : thirteen counterfeit half-crowns, all electro-plated, 
 of the same date and the same mould, each wrapped in a separate 
 piece of paper ; and fourteen counterfeit shillings, all electro-plated, 
 of the same date and the same mould. The prisoner said that they 
 had been given him while gambling, and that he did not know that 
 they were counterfeit : and it was held that there was sufficient evi- 
 dence to go to the jury that he knew that the coin was counterfeit, 
 and intended to utter it. (/) 
 
 Accessories. — It was formerly held that an associate of an utterer 
 of counterfeit coin could not be convicted unless he were either 
 present at the uttering or so near as to be able to give assistance, (m) 
 but this view of the law has been held to be erroneous. 
 
 The first count charged the prisoners with uttering a counterfeit six- 
 pence to A., and on the same day uttering another to B. ; the second 
 count with uttering to C. ; and a third count with uttering to D. 
 The prisoners were in a town together all the day in question, and 
 in the evening quitted a public-house together, having first changed 
 their clothes for the purpose of disguise. Each of them uttered three 
 bad sixpences, made in the same mould, and of the same metal, to 
 
 (h) That is, within the repealed Act, 15 (k) R. v. Foster, Dears. C. C. R. 456 ; 
 
 Geo. 2, c. 28. 24 L. J. M. C. 134. See vol. iii. Evidence. 
 
 (i) R. v. Whiley, 2 Leach, 983. (Z) R. v. Jarvis, Dears. C. C. 552. 
 
 (j) Harrison's case, 2 Lewin, 118, Taun- (m) R. v. Else, Rus. & Ry. 42 ; R. v. 
 
 ton, J., and Alderson, B. Page, 2 Moo. C. C. 290 ; R. v. Skerritt, 2 
 
 C. & P. 427.
 
 chap. IV.} Of Uttering Counterfeit Coin of the Realm. 243 
 
 shopkeepers living within a short space of each other, and the pris- 
 oners were found together immediately afterwards with counterfeit 
 money on their persons, but there was no proof that they woe 
 together at either of the utterings. There were other facts to show a 
 community of purpose. On these facts, Erskine, J., at first called on 
 the counsel for the prosecution to elect as to which of the prisoners 
 lie intended to proceed; but it was contended that if the prisoners 
 jointly provided themselves with the coin for uttering, and shared the 
 proceeds afterwards, they were jointly guilty of each act of uttering ; 
 that in misdemeanor there being no accessories, the acts which would 
 make them accessories before the fact in felony made them principals 
 on this charge, and that at all events one of them could be convicted of 
 the two utterings on the same day, and the other of the single utter- 
 ing, of which he was guilty, on one of the other counts. Erskine, J., 
 then directed the trial to proceed, and in summing up told the jury, 
 that if two persons, having jointly prepared counterfeit coin, planned 
 the uttering, and went on a joint expedition, and uttered, in concert 
 and by previous arrangement, the different pieces of coin, then the 
 act of one would be the act of both, though they might not be proved 
 to be actually together at each uttering. It might be different if, 
 having possession of the counterfeit coin, they shared it between 
 them, and each went his own way, and acted independently of the 
 other. If they thought they were acting in concert in the utterings 
 charged, they should convict on the whole indictment. If they 
 thought they were uttering independently of each other, they might 
 convict one of the two utterings on the first count, and the other on 
 the other counts, (n) 
 
 So, where, on an indictment against Greenwood and Johnson for a 
 misdemeanor in uttering counterfeit coin, it appeared that the utter- 
 ing was by Johnson in the absence of Greenwood ; but that both 
 were together before the uttering, each offering counterfeit shillings 
 of the same description with that uttered by Johnson ; that they 
 both brought food purchased with the proceeds of such utterings to a 
 common lodging : and that Greenwood was taken on the same even- 
 ing with a counterfeit shilling of the same mould in his possession, 
 and with eight good sixpences and five fourpenny pieces, which left 
 no doubt of their joint engagement in a common purpose of uttering 
 base shillings and sharing in the proceeds ; Talfourd, J., directed the 
 jury that if they thought Greenwood was engaged on the evening in 
 question with Johnson in the common purpose of uttering counterfeit 
 shillings, having one stock of such coin, for their mutual benefit ; 
 and if, in pursuance of such purpose, Johnson uttered the shilling, 
 they ought to find Greenwood guilty, subject to the question of law 
 whether the actual presence of Greenwood, or so near the neighbour- 
 hood as to amount to association in the very act, was necessary to 
 support the charge. The jury found both guilty ; but, in deference 
 to the authority of B. v. Else (o) and R. v. Page, (j)) the question 
 whether Greenwood was properly convicted was reserved for the opin- 
 ion of the judges ; and they were unanimously of opinion that he 
 
 (n) R. v. Hurse, 2 M. & Rob. 360. (p) Supra. 
 
 (o) Supra.
 
 244 Of Uttering Counterfeit Coin of the Realm. [book ii. 
 
 was rightly convicted. At common law, persons who in felony would 
 have been accessories before the fact, in misdemeanor were principals, 
 and therefore the cases of R. v. Else and R. v. Page were wrongly 
 decided, (q) 
 
 Where one of two persons utters base coin, and other base coin is 
 found on the other, they are jointly guilty of the aggravated offence 
 under sec. 10 of the 24 & 25 Vict. c. 99, if they are acting in concert, 
 and the one knows of the possession of the base coin by the other ; for 
 by the interpretation clause the having any coin in possession includes 
 ' the knowing and wilfully having it in the actual custody or posses- 
 sion of any other person ; ' and as it is clear that under that clause 
 a man may have possession of coin in a house or other place, though 
 he is far away, so the possession of coin by one man may be the 
 possession of another within that clause, though they are at a great 
 distance from each other, (r) 
 
 Form of indictment. — The word ' knowing ' in indictments for 
 uttering coin sufficiently applies to the time and place of uttering, 
 and no addition of time or place is necessary. The word ' knowing ' 
 refers to the prisoner, and not to the person to whom the coin was 
 uttered, although that person's name immediately precedes the word 
 ' knowing.' It is sufficient, in an indictment for a felony for uttering 
 base coin after a previous conviction, to state that the prisoner was 
 in due form of law tried and convicted by a jury. 
 
 It is no objection that an indictment for felony, for uttering base 
 coin after a previous conviction, states that the prisoner, together with 
 another person, was tried and convicted ; and the record of the for- 
 mer trial shows the conviction of the prisoner and the acquittal of 
 the other person. 
 
 Where a prisoner was indicted under the 3 Will. 4, c. 34, s. 7, for 
 uttering counterfeit money after a previous conviction, and the indict- 
 ment alleged that the prisoner, ' together with one T. P., w r as in due 
 form of law tried and convicted' by a jury upon an indictment 
 against them, for that they did unlawfully utter a shilling ' to A. W., 
 knowing the same to be false,' and thereupon it was considered that 
 the prisoner should be imprisoned for two years ; and that the 
 prisoner afterwards feloniously did utter a half-crown ' to T. H., 
 knowing the same to be false.' The copy of the record of the 
 former trial stated the conviction of the prisoner and the acquittal 
 of T. P. : it was objected, 1st. That the indictment was bad for want 
 of an addition of time and place to the allegation of knowledge, 
 which was to be found neither in the recital of the former indict- 
 ment, nor in the substantive charge on the face of the present in- 
 dictment ; but the learned judge thought that the former indictment 
 was good, being in the words of the statute and after verdict ; and 
 that ' knowing ' in the present indictment, being a participle in the 
 present tense, must import knowledge at the time of the uttering. 
 2ndly. That the word ' knowing ' did not refer to the prisoner, but to 
 A. W. and T. H. ; but the learned judge thought that ' knowing ' did 
 
 (q) R. v. Greenwood, 2 Den. C. C. 453 ; 362 ; S. C, 2 Cox, C. C. 68, and E. v. 
 overruling also R. v. Hayes, 1 Cox, C. C. West, 2 Cox, C. C. 237. 
 
 (r) See ante, p. 234.
 
 chap, iv.] Of Uttering Foreign Counterfeit Coin. 245 
 
 refer to the prisoner, as all that was alleged to be done was alleged to 
 be done by him. 3rdly. That the indictment did not state any former 
 conviction, because neither the plea nor the verdict of the jury was 
 recited ; but the learned judge thought the allegation that he had 
 been in due course of law tried and convicted, together with a state- 
 ment of the judgment, was sufficient. 4thly. That the recital of the 
 former record showed a conviction of the prisoner and T. P., whereas 
 the record produced showed that the prisoner alone had been convicted 
 and T. P. acquitted, and therefore there was a variance ; the learned 
 judge overruled this objection also, but entertaining some doubt upon 
 the point, he reserved the case for the opinion of the judges, who 
 held the conviction right, (s) 
 
 Sec. IL 
 Of Uttering, Tendering, &c., Foreign Counterfeit Coin, &c. 
 
 By the 24 & 25 Vict. c. 99, s. 20, • Whosoever shall tender, utter, or 
 put off any such false or counterfeit coin resembling or apparently 
 intended to resemble or pass for any gold or silver coin of any foreign 
 prince, state, or country, (t) knowing the same to be false or counter- 
 feit, shall, in England and Ireland, be guilty of a misdemeanor, and 
 in Scotland of a crime and offence, and being convicted thereof shall 
 be liable, at the discretion of the Court, to be imprisoned for any term 
 not exceeding six months, with or without hard labour.' (u) 
 
 Sec. 21. ' Whosoever, having been so convicted as in the last preced- 
 ing section mentioned, shall afterwards commit the like offence of ten- 
 dering, uttering, or putting off any such false or counterfeit coin as 
 aforesaid, knowing the same to be false or counterfeit, shall in En^- 
 land and Ireland, be guilty of a misdemeanor, and in Scotland of a 
 crime and offence, and being convicted thereof shall be liable, at the 
 discretion of the Court, to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement ; and whosoever, having been so convicted of a second 
 offence, shall afterwards commit the like offence of tendering, utter- 
 ing, or putting off any such false or counterfeit coin as aforesaid, 
 knowing the same to be false or counterfeit, shall, in England and 
 Ireland, be guilty of felony, and in Scotland of a high crime and 
 offence, and being convicted thereof shall be liable, at the discretion 
 of the Court, to be kept in penal servitude for life or for any term 
 not less than three years, — or to be imprisoned for any term not 
 exceeding two years, with or without hard labour, and with or with- 
 out solitary confinement.' (v) 
 
 (s) R. v. Page, Hereford Spr. Ass. 1841, rest of this Act. It is new in Ireland. As 
 
 Coleridge, J., MSS. C. S. G., and 2 M. C. to hard labour. &c, see ante, p. 218. 
 C. R. 219. The learned judge only reserved (v) This clause is framed from the 37 
 
 the last point, but he stated the others to Geo. 3, c. 126, s. 4. As to the indictment and 
 
 the judges, that the prisoner might have the proceedings, see sec. 37, ante, p. 235. Hav- 
 
 benefit of them, if he had been wrong in ing in custody a greater number than five 
 
 overruling them. pieces of counterfeit foreign coin, whether 
 
 (t) See sec. 18, ante, p. 210. current here or not, makes the party liable 
 
 (u) This clause is framed from the 37 to punishment by proceedings before a jus- 
 
 Geo. 3, c. 126, s. 4, with such alterations in tice of the peace, under sec. 23 of the statute, 
 its terms as to make it correspond with the
 
 246 Of Uttering Foreign Counterfeit Coin. [book ii. 
 
 Sec. 13. 'Whosoever shall, with intent to defraud, tender, utter, 
 or put oil' as or for any of the Queen's current gold or silver coin, 
 any coin not being such current gold or silver coin, or any medal 
 or piece of metal or mixed metals, resembling in size, figure, and 
 colour the current coin as or for which the same shall be so tendered > 
 uttered, or put off, such coin, medal, or piece of metal or mixed metals 
 so tendered, uttered, or put off' being of less value than the current 
 coin as or for which the same shall be so tendered, uttered, or put 
 off, shall, in England and Ireland be guilty of a misdemeanor, and in 
 Scotland of a crime and offence, and being convicted thereof, shall be 
 liable, at the discretion of the Court, to be imprisoned for any term 
 not exceeding one year, with or without hard labour, and with or 
 without solitary confinement.' 
 
 This clause is new. It is intended to meet the cases of uttering 
 foreign coin or medals as and for the current coin of the realm. In 
 order to bring a case within this clause, the coin or medal uttered 
 must be of less value, than the coin for which it was uttered, and 
 must have been uttered with intent to defraud, (w) 
 
 The prisoner was indicted on the 24 & 25 Vict. c. 99, s. 13, for 
 uttering a medal resembling in size, figure, and colour, a half sovereign. 
 The medal was described as being made of metal, and of the same 
 diameter as a half sovereign, and somewhat similar in colour. On 
 the obverse there was the head of the Queen, similar to that on a 
 half sovereign ; but the legend was entirelv different from that on the 
 half sovereign, being ' Victoria, Queen of Great Britain,' instead of 
 ' Victoria Dei Gratia.' The medal was queried, but the querling was 
 round and not square. The medal was of less value than a half 
 sovereign. The coin was lost before a full description of it was given, 
 and it was never shown to the jury. It was objected that ' figure ' in 
 the indictment meant the impression on the medal, and that such 
 impression must be similar to the impression on the genuine coin for 
 which it was uttered, and that there was no evidence that the medal 
 resembled the half sovereign in size, figure, and colour. It was an- 
 swered that 'figure' meant the general shape and outline of the 
 medal, and that there was evidence for the jury ; and the jury having 
 convicted, it was held, on a case reserved, that there was some evi- 
 dence that the medal, in size, figure, and colour resembled a half 
 sovereign, (x) 
 
 (w) See the interpretation clause, ante, (*) R. v. Robinson, R. & M. C. C. R. 
 
 p. 208. 413.
 
 CHAPTER THE FIFTH. 
 
 OF BUYING, SELLING, RECEIVING, OR PAYING FOR COUNTER- 
 FEIT COIN AT A LOWER RATE THAN ITS DENOMINATION 
 IMPORTS. 
 
 By the 24 & 25 Vict. c. 99, s. 6, ' Whosoever without lawful author- 
 ity or excuse (the proof whereof shall lie on the party accused), shall 
 buy, sell, receive, pay, or put off, or offer to buy, sell, receive, pay, or 
 put off, any false or counterfeit coin resembling or apparently intended 
 to resemble or pass for any of the Queen's current gold or silver coin 
 at or for a lower rate or value than the same imports or was appar- 
 ently intended to import, shall, in England and Ireland, be guilty of 
 felony, and in Scotland of a high crime and offence, and being con- 
 victed thereof shall be liable, at the discretion of the Court, to be 
 kept in penal servitude for life or for any term not less than three 
 years, — or to be imprisoned for any term not exceeding two years, 
 with or without hard labour, and with or without solitary confine- 
 ment ; and in any indictment for any such offence as in this section 
 aforesaid it shall be sufficient to allege that the party accused did buy, 
 sell, receive, pay, or put off, or did offer to buy, sell, receive, pay, or 
 put off the false or counterfeit coin at or for a lower rate or value 
 than the same imports or was apparently intended to import, ivith- 
 out alleging at or for what rate, price, or value the same loas bought, 
 sold, received, paid, or put off, or offered to be bought, sold, received, 
 paid, or put off.' (a) 
 
 The words ' without lawful authority,' &c, were introduced in order 
 to protect officers and others who are authorised to buy or procure 
 false coin in order to detect coiners ; under the former enactment 
 every one who bought, &c, false coin was within its words. 
 
 The words of the former enactment were ' the same by its denomi- 
 nation imports, or was coined, or counterfeited for.' The words in 
 italics have been substituted for them as more appropriately applying 
 to counterfeit coin. 
 
 Under the former enactment it was necessary to allege in the indict- 
 ment, and prove by evidence, the sum for which the coin was bought, 
 &c. ; (b) the last part of this clause renders it unnecessary to allege 
 the sum for which the coin was bought, &c, and consequently what- 
 ever the evidence on that point may be, there can be no variance 
 between it and the allegation in the indictment, and all that need be 
 proved is that the coin was bought, &c, at some lower rate or value 
 than it imports. 
 
 (a) This clause is taken from the 2 Will. (b) R. v. Joyce, Carr. Supp. 184; R. v. 
 
 4, c. 34, s. 6. Hedges, 3 C. & P. 410.
 
 248 Buying, Etc., Counterfeit Coin at Lower Rate, [book ii. 
 
 By the 24 & 25 Vict. c. 99, s. 14, « Whosoever shall buy, sell, re- 
 ceive, pay, or put off, or offer to buy, sell, receive, pay, or put off 
 any false or counterfeit coin resembling or apparently intended to 
 resemble or pass for any of the Queen's current copper coin, at or 
 for a lower rate or value than the same imports or was apparently 
 intended to import, shall, in England and Ireland, be guilty of felony, 
 and in Scotland of a high crime and offence, and being convicted 
 thereof shall be liable, at the discretion of the Court, to be kept in 
 penal servitude for any term not exceeding seven years, and not less 
 than three years, — or to be imprisoned for any term not exceeding 
 two years, with or without hard labour, and with or without solitary 
 confinement.' (c) 
 
 The mere vending of the money was not considered to come within 
 the 8 & 9 Will. 3, c. 26, s. 6, unless it were done at a lower value than 
 the coin imported ; and it should be so stated in the indictment, (d) 
 
 If the names of the persons to whom the money was put off can 
 be ascertained, they ought to be laid in the indictment ; but if they 
 cannot be ascertained the same rule applies as in stealing the prop- 
 erty of persons unknown, (e) 
 
 (c) This clause is taken from part of sec. (d) 1 East, P. C. c. 4, s. 27, p. 180= 
 
 12 of the 2 Will. 4, c. 34. As to the words (e) Ibid. 
 
 in italics, see remarks on sec. 6, ante, p. 247.
 
 CHAPTEE THE SIXTH, 
 
 OF SERVING OR PROCURING OTHERS TO SERVE FOREIGN STATES. 
 
 Entering into the service of any foreign state without the consent of 
 the King, or contracting with it any other engagement which subjects 
 the party to an influence or control inconsistent with the allegiance 
 due to our own sovereign, is, at common law, a high misdemeanor, and 
 punishable accordingly, (a) Indeed it is considered as so high an 
 offence to prefer the interest of a foreign state to that of our own, 
 that any act is criminal which may but incline a man to do so ; as 
 to receive a pension from a foreign prince without the leave of the 
 King. (6) 
 
 Where the defendants were indicted under the 59 Geo. 3, c. 69, 
 now repealed by the 33 & 34 Vict. c. 90, s. 31, infra, for engag- 
 ing and procuring at Liverpool men to enlist as sailors in the Con- 
 federate service ; and it appeared that the men had been induced by 
 the defendants to sign articles at Liverpool to serve in the ' Japan ' 
 on a voyage to China, and they embarked on board her, and she 
 sailed to the British Channel, and anchored off" Brest, and the next 
 day a captain of the Confederate navy enlisted the men in that ser- 
 vice ; Cockburn, C. J., held that the question was, whether the defend- 
 ants procured the sailors to embark at Liverpool for the purpose of 
 their being employed in the service of the Confederate States. If 
 they procured the sailors to embark on board the ' Japan ' and sail 
 to a foreign country, to be there enlisted in the Confederate service, 
 they were guilty, and it was sufficient if that was the intention of 
 the defendants, although the men themselves did not go with that 
 intention, (c) 
 
 An indictment on the 59 Geo. 3, c. 69, now repealed, contained 
 counts for causing, &c, men to enlist in the Confederate service as 
 sailors, &c, and for counselling men here to enlist in that service 
 abroad, and for assisting the equipment of a vessel for that service. 
 An old iron steam gunboat dismantled of all her guns and warlike 
 equipments, and stripped of her armour-plates, masts, spars, and sails, 
 and with only her engines and boilers in her, was sold by the Govern- 
 ment to a firm, who bought her with a view to her being engaged in 
 the Confederate service. Leave was obtained from the Admiralty to 
 have the vessel docked and repaired at Sheerness, and the defendant, 
 who was one of the dockyard officials, had rendered every assistance. 
 
 (a) 1 East, P. C. c. 2, s. 23, p. 81. 4 (c) K. v. Jones, 4 F. & F. 25. But see 
 Blac. Com. 122. now 33 & 34 Vict. c. 90, s. 6, post, p. 252. 
 
 (b) 1 Hawk. P. C. c. 22, s. 3. 4 Blac. 
 Com. 121. 3 Inst. 144.
 
 250 Of Serving Foreign States. [book II. 
 
 There were no warlike equipments done, but mere repairs or fittings 
 as a mercantile vessel. The defendant had held himself out as enga- 
 ging men on board the vessel for a trial trip previously to her going 
 on a voyage to China, and had engaged men, or sent them on board 
 to be engaged, as stokers, firemen, or engineers ; but none of the men 
 had any other idea than that the vessel was destined for China. The 
 vessel went to Calais, and there the Confederate flag was hoisted, and 
 officers came on board and took the command of her as a Confederate 
 vessel, and the men were invited to enlist in the Confederate service, 
 but most of them declined. The defendant was on board whilst the 
 Confederate flag was flying, in company with the officers, and when 
 he came back to Sheerness he continued to interest himself in sending 
 men over for the service of the vessel, though only in connection with 
 the locomotive power. The jury were directed — 1. That the main 
 question was, whether the defendant was a party to the engagement 
 of the men with a view to enlistment in the Confederate service. 
 2. That the acts of the defendant after he must have been aware of 
 the destination of the vessel, though not the subject-matter of the in- 
 dictment, might be taken into consideration as throwing light upon 
 the intention with which he did the acts in the earlier part of the 
 transaction, which were the subject-matter of the indictment. 3. That 
 the trilling repairs done to the engines, &c, did not amount to an 
 equipment. 4. That if the defendant procured the men to enter into 
 engagements nominally for a trial trip, but with the ulterior purpose 
 on his part of getting them into a position in which they might 
 be induced to enlist in the Confederate service, the defendant was 
 guilty, but if his object in engaging the men was simply that the 
 vessel should go out on a trial trip and come back, he was not guilty. 
 5. That the term ' sailors ' in the statute included persons engaged as 
 stokers, firemen, and engineers, for the purpose of navigating the 
 vessel. 6. That there must be a hiring or enlistment in the United 
 Kingdom to bring the case within the statute. 7. That such an 
 offence must have been committed in England, or the offence of coun- 
 selling its commission was not proved, (d) 
 
 The building in pursuance of a contract, with intention to sell and 
 deliver to a belligerent power the hull of a vessel suitable for war, 
 but unarmed and not equipped, or fitted out with anything which 
 enables her to cruise or commit hostilities, or do any warlike act 
 whatever, is not a violation of the 59 Geo. 3, c. 69, now repealed. 
 The equipment forbidden by that Act is an equipment of such war- 
 like character as enables a ship on leaving a port of this kingdom 
 to cruise or commit hostilities. (Per Pollock, C. B., and Bramwell, B.) 
 If the character of equipment is doubtful, it may be explained by 
 evidence of the intent of the parties. The Act includes a case where 
 the equipment is such that, although the ship when it leaves a port in 
 this kingdom is not in a condition at once to commit hostilities, it is 
 yet capable of being used for war, and the intent is clear that it is to 
 be used for war. (Per Channell, B.) Any act of equipping, furnish- 
 ing, or fitting out done to the hull or vessel, of whatever nature or 
 character that act may be, if done with the prohibited intent, is within 
 
 (d) R. v. Rumble, 4 F. & F. 175. See R. v. Corbett, 4 F. & F. 555.
 
 chap. VI.] Of Serving Foreign States. 251 
 
 the statute. (Per Pigott, B.) On the trial of an information respect- 
 'mv the seizure of a vessel in a port at Liverpool for an alleged viola- 
 tion of the Act for equipping her for the service of a belligerent state, 
 Bramwell, B., was of opinion, that a right direction would be, that if 
 the jury were satisfied that the parties concerned were equipping, or 
 arming, or attempting to equip or arm, the ship claimed, with intent 
 that it should be employed in the service of a foreign power to cruise 
 or commit hostilities against others as alleged, they should find for 
 the Crown ; but such equipment or attempted equipment must be 
 of a warlike character, so that by means of it the ship was in a con- 
 dition more or less effective to cruise or commit hostilities ; otherwise 
 they must find for the claimants. Channell, B., was of opinion that 
 the questions left to the jury should have been — 1. Was there an 
 intent, on the part of any one having a controlling power over the 
 vessel, that she should be employed in the service of the Confederate 
 States, to cruise or commit hostilities against the United States ? 
 2. If so, was she equipped, fitted out, or furnished in a British port 
 in order to be employed to cruise, &c. ? 3. If not equipped, was 
 there any attempt to equip her in a British port in order that she 
 should be so employed ? 4. Or did any one knowingly assist, &c, 
 in such equipment in a British port ? Pigott, B., said that the jury 
 should have been directed to see — 1, whether the equippers or the 
 purchasers had the prohibited intent; and, 2, whether with such 
 intent they had done any act towards equipping, furnishing, or fitting 
 out the ship, beyond the mere work of building the hull of the vessel, 
 or had attempted to do so. (e) 
 
 With respect to serving, or procuring others to serve, foreign 
 states, provisions have been made by several statutes. The 3 Jac. 1, 
 c. 4, s. 18, which contained provisions against soldiers and other per- 
 sons going out of the realm to serve foreign states, was repealed by 
 the 9 & 10 Vict. c. 59. Under that Act it was considered, that if a 
 party went out of the realm with intent to serve a foreign state, 
 although there was no service in fact ; or if a party did actually so 
 serve, though he did not go over for that purpose, but upon some 
 other occasion, it was within the statute. (/) 
 
 Now by the Foreign Enlistment Act 1870 (33 & 34 Vict. c. 90), s. 4, 
 'if any person, without the licence of Her Majesty, being a British sub- 
 ject, within or without Her Majesty's dominions, accepts or agrees to 
 accept any commission or engagement in the military or naval service 
 of any foreign state at war with any foreign state at peace with Her 
 Majesty, and in this Act referred to as a friendly state, or whether 
 a British subject or not within Her Majesty's dominions, induces any 
 other person to accept or agree to accept any commission or engage- 
 ment in the military or naval service of any such foreign state as 
 aforesaid, — 
 
 'He shall be guilty of an offence against this Act, and shall be 
 punishable by fine and imprisonment, or either of such punishments, 
 at the discretion of the court before which the offender is convicted ; 
 
 (c) Attorney-Gen. v. Sillem, 2 H. & C. (f) 2, Inst. 80. 1 East, P. C. c. 2, s. 23, 
 
 431. But see now 33 & 34 Vict. c. 90, ss. 8, p. 82. 
 9, post, p. 253.
 
 252 Foreign Enlistment Act. [book ii. 
 
 and imprisonment, if awarded, may be either with or without hard 
 labour.' 
 
 Sec. 5. ' If any person, without the licence of Her Majesty, being 
 a British subject, quits or goes on board any ship with a view of quit- 
 ting Her Majesty's dominions, with intent to accept any commission 
 or engagement in the military or naval service of any foreign state at 
 war with a friendly state, or, whether a British subject or not, within 
 Her Majesty's dominions, induces any other person to quit or to go on 
 board any ship with a view of quitting Her Majesty's dominions with 
 the like intent,' he shall be punishable as under sec. 4. 
 
 Sec. 6. ' If any person induces any other person to quit Her 
 Majesty's dominions or to embark on any ship within Her Majesty's 
 dominions under a misrepresentation or false representation of the 
 service in which such person is to be engaged, with the intent, or 
 in order that such person may accept or agree to accept any com- 
 mission or engagement in the military or naval service of any foreign 
 state at war with a friendly state/ he shall be punishable as under 
 sec. 4. 
 
 Sec. 7. ' If the master or owner of any ship, without the licence of 
 Her Majesty, knowingly either takes on board, or engages to take on 
 board or has on board such ship within Her Majesty's dominions any 
 of the following persons, in this Act referred to as illegally enlisted 
 persons ; that is to say, 
 
 (1.) 'Any person who, being a British subject within or without the 
 dominions of Her Majesty, has, without the licence of Her Majesty, 
 accepted or agreed to accept any commission or engagement in the 
 military or naval service of any foreign state at war with any friendly 
 state : 
 
 (2.) ' Any person, being a British subject, who, without the licence 
 of Her Majesty, is about to quit Her Majesty's dominions with 
 intent to accept any commission or engagement in the military or 
 naval service of any foreign state at war with a friendly state : 
 
 (3.) 'Any person who has been induced to embark under a mis- 
 representation or false representation of the service in which such 
 person is to be engaged, with the intent or in order that such person 
 may accept or agree to accept any commission or engagement in the 
 military or naval service of any foreign state at war with a friendly 
 state, — 
 
 ' Such master or owner shall be guilty of an offence against this Act, 
 and the following consequences shall ensue ; that is to say,' 
 
 (1.) He shall be punishable as under sec. 4. 
 
 (2.) ' Such ship shall be detained until the trial and conviction or 
 acquittal of the master or owner, and until all penalties inflicted on 
 the master or owner have been paid, or the master or owner has given 
 security for the payment of such penalties to the satisfaction of two 
 justices of the peace, or other magistrate or magistrates having the 
 authority of two justices of the peace:' and 
 
 (3.) ' All illegally enlisted persons shall immediately on the discovery 
 of the offence be taken on shore, and shall not be allowed to return 
 to the ship.' 
 
 Sec. 8. ' If any person within Her Majesty's dominions, without
 
 chap, vi.] Of Serving Foreign States. 253 
 
 the licence of Her Majesty, does any of the following acts ; that is 
 to say, — 
 
 (1.) 'Builds or agrees to build, or causes to be built any ship with 
 intent or knowledge, or having reasonable cause to believe that the 
 same shall or will be employed in the military or naval service of any 
 foreign state at war with any friendly state : or 
 
 (2.) 'Issues or delivers any commission for any ship with intent or 
 knowledge, or having reasonable cause to believe that the same power 
 shall or will be employed in the military or naval service of any 
 foreign state at war with any friendly state : or 
 
 (3.) ' Equips any ship with intent or knowledge, or having reason- 
 able cause to believe that the same shall or will be employed in the 
 military or naval service of any foreign state at war with any friendly 
 state: or 
 
 (4.) ' Dispatches, or causes or allows to be dispatched, any ship with 
 intent or knowledge, or having reasonable cause to believe that the 
 same shall or will be employed in the military or naval service of any 
 foreign state at war with any friendly state, — 
 
 ' Such person shall be deemed to have committed an offence against 
 this Act, and the following consequences shall ensue : ' 
 
 (1.) He shall be punishable as under sec. 4. 
 
 (2.) ' The ship in respect of which any such offence is committed, 
 and her equipment shall be forfeited to Her Majesty : ' 
 
 ' Provided that a person building, causing to be built, or equipping 
 a ship in any of the cases aforesaid, in pursuance of a contract made 
 before the commencement of such war as aforesaid, shall not be liable 
 to any of the penalties imposed by this section in respect of such 
 building or equipping if he satisfies the conditions following (that is 
 to say), 
 
 (1.) If forthwith upon a proclamation of neutrality being issued by 
 Her Majesty he gives notice to the Secretary of State, that he is so 
 building, causing to be built, or equipping such ship, and furnishes 
 such particulars of the contract and of any matters relating to, or 
 done, or to be done under the contract as may be required by the 
 Secretary of State : 
 
 (2.) If he gives such security, and takes and permits to be taken 
 such other measures, if any, as the Secretary of State may prescribe 
 for ensuring that such ship shall not be dispatched, delivered, or re- 
 moved without the licence of Her Majesty until the termination of 
 such war as aforesaid.' 
 
 Sec. 9. ' Where any ship is built by order of or on behalf of any 
 foreign state when at war with a friendly state, or is delivered to or 
 to the order of such foreign state, or any person who to the knowledge 
 of the person building is an agent of such foreign state, or is paid for 
 by such foreign state or such agent, and is employed in the military 
 or naval service of such foreign state, such ship shall, until the con- 
 trary is proved, be deemed to have been built with a view to being so 
 employed, and the burden shall lie on the builder of such ship of 
 proving that he did not know that the ship was intended to be so 
 employed in the military or naval service of such foreign state.' 
 
 Sec. 10. 'If any person within the dominions of Her Majesty, and 
 without the licence of Her Majesty, —
 
 254 Foreign Enlistment Act. [book ii. 
 
 By adding to the number of the guns, or by changing those on 
 board for other guns, or by the addition of any equipment for war 
 increases or augments, or procures to be increased or augmented, or 
 is knowingly concerned in increasing or augmenting the warlike force 
 of any ship which at the time of her being within the dominions of 
 Her Majesty was a ship in the military or naval service of any foreign 
 state at war with any friendly state,' he shall be punishable as under 
 sec. 4. 
 
 Sec. 11. ' If any person within the limits of Her Majesty's domin- 
 ions, and without the licence of Her Majesty, — 
 
 Prepares or fits out any naval or military expedition to proceed 
 against the dominions of any friendly state, the following conse- 
 quences shall ensue : 
 
 (1.) Every person engaged in such preparation or fitting out, or 
 assisting therein, or employed in any capacity in such expedition, 
 shall be guilty of an offence against this Act, and shall be punish- 
 able ' as under sec. 4. 
 
 (2.) 'All ships, and their equipments, and all arms and munitions 
 of war, used in or forming part of such expedition, shall be forfeited 
 to Her Majesty.' (g) 
 
 Sec. 12. ' Any person who aids, abets, counsels, or procures the com- 
 mission of any offence against this Act shall be liable to be tried and 
 punished as a principal offender.' 
 
 Sec. 13. ' The term of imprisonment to be awarded in respect of any 
 offence against this Act shall not exceed two years.' 
 
 Sec. 14 provides for the restoration of certain illegal prizes brought 
 into British ports. 
 
 Sec. 15. ' For the purposes of this Act, a licence by Her Majesty 
 shall be under the sign manual of Her Majesty, or be signified by 
 Order in Council or by proclamation of Her Majesty.' 
 
 Sec. 16. ' Any offence against this Act shall, for all purposes of and 
 incidental to the trial and punishment of any person guilty of any 
 such offence, be deemed to have been committed either in the place in 
 which the offence was wholly or partly committed, or in any place 
 within Her Majesty's dominions in which the person who committed 
 such offence may be.' 
 
 Sec. 17. ' Any offence against this Act may be described in any 
 indictment or other document relating to such offence, in cases where 
 the mode of trial requires such a description, as having been com- 
 mitted at the place where it was wholly or partly committed, or it 
 may be averred generally to have been committed within Her Ma- 
 jesty's dominions, and the venue or local description in the margin 
 may be that of the county, city, or place in which the trial is held.' 
 
 Sec. 18. ' The following authorities, that is to say : in the United 
 
 (g) The offence of fitting out and preparing that they are to be used in a hostile demon- 
 an expedition within the Queen's dominions stration against such state, though the ship- 
 again st a friendly State under this section is per takes no part in any overt act of war, 
 constituted by the purchase of guns and and the ship is not fully equipped for the 
 ammunition in this country and their ship- expedition within any port belonging to the 
 nient for a foreign port for the purpose of ' Queen's dominions. R. v. Sandoval, 16 Cox, 
 there being put on board a ship, witli the C. C. 206. 
 knowledge of the purchaser and shipper
 
 CHAP, vi.] Of Serving Foreign States. 255 
 
 Kingdom, any judge of a superior couit, in any other place within the 
 jurisdiction of any British court of justice, such court, or, if there are 
 more courts than one, the court having the highest criminal jurisdic- 
 tion in that place, may, by warrant or instrument in the nature of a 
 warrant in this section included in the term " warrant," direct that 
 any offender charged with an offence against this Act shall be removed 
 to some other place in Her Majesty's dominions for trial, in cases 
 where it appears to the authority granting the warrant that the re- 
 moval of such offender would be conducive to the interests of jus- 
 tice, and any prisoner so removed shall be triable at the place to 
 which he is removed, in the same manner as if his offence had been 
 committed at such place. 
 
 Any warrant for the purposes of this section may be addressed to the 
 master of any ship or to any other person or persons, and the person or 
 persons to whom such warrant is addressed shall have power to convey 
 the prisoner therein named to any place or places named in such 
 warrant, and to deliver him, when arrived at such place or places, 
 into the custody of any authority designated by such warrant. 
 
 Every prisoner shall, during the time of his removal under any 
 such warrant as aforesaid, be deemed to be in the legal custody of 
 the person or persons empowered to remove him.' 
 
 Sec. 19 directs how proceedings for the condemnation and forfeiture 
 of a ship, &c, are to be taken. 
 
 Sec. 20. ' Where any offence against this Act has been committed by 
 any person by reason whereof a ship, or ship and equipment, or arms 
 and munitions of war, has or have become liable to forfeiture, proceed- 
 ings may be instituted contemporaneously or not, as may be thought 
 fit, against the offender in any court having jurisdiction of the offence, 
 and against the ship, or ship and equipment, or arms and munitions of 
 war, for the forfeiture in the Court of Admiralty ; but it shall not be 
 necessary to take proceedings against the offender because proceed- 
 ings are instituted for the forfeiture, or to take proceedings for the 
 forfeiture because proceedings are taken against the offender.' 
 
 Sec. 21, and the following sections, enact that the Secretary of State 
 and certain other persons may seize or detain any ship liable to be 
 seized or detained in pursuance of this Act, and give them certain 
 powers for such purpose. 
 
 Sec. 29. ' The Secretary of State shall not, nor shall the chief (gg) 
 executive authority, be responsible, in any action or other legal pro- 
 ceedings whatsoever for any warrant issued by him in pursuance of 
 this Act, or be examinable as a witness, except at his own request, in 
 any court of justice in respect of the circumstances which led to the 
 issue of the warrant.' 
 
 Sec. 30. ' In this Act, if not inconsistent with the context, the fol- 
 lowing terms have the meanings hereinafter respectively assigned to 
 them ; that is to say, — 
 
 ' " Foreign state " includes any foreign prince, colony, province, or 
 part of any province or people, or any person or persons exercising or 
 assuming to exercise the powers of government in or over any foreign 
 country, colony, province, or part of any province or people : " Military 
 
 (gg) See sec. 26.
 
 256 Foreign Enlistment Act. [book ii. 
 
 service " shall include military telegraphy and any other employment 
 whatever, in or in connexion with any military operation : " Naval 
 service " shall, as respects a person, include service as a marine, em- 
 ployment as a pilot in piloting or directing the course of a ship of 
 war or other ship when such ship of war or other ship is being used 
 in any military or naval operation, and any employment whatever on 
 board a ship of war, transport, store ship, privateer, or ship under 
 letters of marque ; and as respects a ship, include any user of a ship 
 as a transport, store ship, privateer, or ship under letters of marque : 
 " United Kingdom " includes the Isle of Man, the Channel Islands, 
 and other adjacent islands : " British possession " means any territory, 
 colony, or place being part of Her Majesty's dominions, and not part 
 of the United Kingdom, as defined by this Act : " The Secretary of 
 State " shall mean any one of Her Majesty's Principal Secretaries of 
 State: "The Governor" shall as respects India mean the Governor 
 General or the Governor of any presidency, and where a British pos- 
 session consists of several constituent colonies, mean the Governor 
 General of the whole possession or the Governor of any of the con- 
 stituent colonies, and as respects any other British possession it shall 
 mean the officer for the time being administering the government of 
 such possession ; also any person acting for or in the capacity of a 
 governor shall be included under the term " Governor " : " Court of 
 Admiralty " shall mean the High Court of Admiralty of England or 
 Ireland, the Court of Session of Scotland, or any Vice-Admiralty 
 Court within Her Majesty's dominions : " Ship " shall include any 
 description of boat, vessel, floating battery, or floating craft; also 
 any description of boat, vessel, or other craft or battery, made to 
 move either on the surface of or under water, or sometimes on the 
 surface of and sometimes under water : " Building " in relation to 
 a ship shall include the doing any act towards or incidental to the 
 construction of a ship, and all words having relation to building shall 
 be construed accordingly : " Equipping " in relation to a ship shall 
 include the furnishing a ship with any tackle, apparel, furniture, pro- 
 visions, arms, munitions, or stores, or any other thing which is used 
 in or about a ship for the purpose of fitting or adapting her for the sea 
 or for naval service, and all words relating to equipping shall be con- 
 strued accordingly : " Ship and equipment" shall include a ship and 
 everything in or belonging to a ship : " Master " shall include any 
 person having the charge or command of a ship.' 
 
 Sec. 32. ' Nothing in this Act contained shall subject to forfeiture 
 any commissioned ship of any foreign state, or give to any British 
 court over or in respect of any ship entitled to recognition as a com- 
 missioned ship of any foreign state any jurisdiction which it would 
 not have had if this Act had not passed.' 
 
 Sec. 33. ' Nothing in this Act contained shall extend or be con- 
 strued to extend to subject to any penalty any person who enters into 
 the military service of any prince, state, or potentate in Asia, with 
 such leave or licence as is for the time being required by law in the 
 case of subjects of Her Majesty entering into the military service 
 of princes, states, or potentates in Asia.' 
 
 It was held that the former Act (59 Geo. 3, c. 69) created an offence 
 against the state, and the Court of Queen's Bench would not grant
 
 chap, vi.] Of Serving Foreign States. 257 
 
 a criminal information for such offence on the application of a private 
 prosecutor, but leave the case to be dealt with like other public 
 offences, (h) 
 
 It may be observed, though not strictly applicable to the subject of 
 this chapter, that disobedience to the King's letter to a subject com- 
 manding him to return from beyond the seas, or to the King's writ of 
 ne exeat regno, commanding a subject to stay at home, is a high mis- 
 prision and contempt, (i) And it is also a high offence to refuse to 
 assist the King for the good of the public, either in councils, by 
 advice, if called upon, or in his wars by personal service for the de- 
 fence of the realm against a rebellion or invasion ; (j) under which 
 class may be ranked the neglecting to join the posse comitatus, or 
 power of the county, being thereunto required by the sheriff or jus- 
 tices, according to the statute 2 Hen. 5, c. 8, which is a duty incum- 
 bent upon all that are fifteen years of age, under the degree of nobility, 
 and able to travel, (k) 
 
 (h) Ex parte Crawshay, 8 Cox, C. C. when commanded, his land shall be seized 
 
 356. As to summary conviction for per- till he does return, 1 Hawk. P. C. c. 22, 
 
 suading soldiers to desert, see post, p. 259. s. 4. 
 
 (i) 4 Blac. Com. 122. And if the sub- (/) 1 Hawk. P. C. c. 22, s. 2. 
 
 ject neglects to return from beyond the seas, (k) 4 Blac. Com. 122. Lamb. Eir. 315. 
 
 vol. i„ — 17
 
 CHAPTER THE SEVENTH. 
 
 OF SEDUCING SOLDIERS AND SAILORS TO DESERT OR MUTINY. 
 
 In consequence of the attempts of evil-disposed persons, by the pub- 
 lication of written or printed papers, and by malicious and advised 
 speaking, to seduce soldiers and sailors from their duty and allegiance 
 to his Majesty, the 37 Geo. 3, c. 70, was passed, enacting ' that any per- 
 son who shall maliciously and advisedly endeavour to seduce any 
 person or persons serving in his Majesty's forces by sea or land, from 
 his or their duty and allegiance to his Majesty, or to incite or stir up 
 any such person or persons to commit any act of mutiny, or to make, 
 or endeavour to make, any mutinous assembly, or to commit any 
 traitorous or mutinous practice whatsoever, shall, on being legally 
 convicted of such offence, be adjudged guilty of felony.' By sec. 3, 
 any person tried, acquitted, or convicted, of any offence against this 
 Act, shall not be liable to be prosecuted again for the same offence or 
 fact, as high treason, or misprision of high treason ; and nothing in 
 the Act contained shall prevent the trial of any person who has not 
 been tried for an offence against this Act from being tried for the 
 same as high treason, or misprision of high treason. And by sec. 2, 
 any offence against this Act, whether committed on the high seas or 
 in England, may be prosecuted and tried before any court of oyer and 
 terminer, or gaol delivery, for any county in England, as if the said 
 offence had been therein committed. 
 
 The 9 Will. 4, & 1 Vict. c. 91, s. 1, after reciting this Act, provides, 
 ' that if any person shall,' after the 1st of October, 1837, ' be convicted 
 of any of the offences hereinbefore mentioned, such person shall not 
 suffer death, or have sentence of death awarded against him or her 
 for the same, but shall be liable, at the discretion of the Court to be 
 transported (a) beyond the seas for the term of the natural life of such 
 person, or for any term not less than fifteen years, or to be imprisoned 
 for any term not exceeding three years.' 
 
 Sec. 2. ' In awarding the punishment of imprisonment for any 
 offence punishable under this Act, it shall be lawful for the Court 
 to direct such imprisonment to be with or without hard labour in 
 the common gaol or house of correction, and also to direct that the 
 offender shall be kept in solitary confinement for any portion or por- 
 tions of such imprisonment, or of such imprisonment with hard labour, 
 not exceeding one month at any one time, and not exceeding three 
 months in any one year, as to the Court in its discretion shall seem 
 meet.' 
 
 (") Penal servitude by the 20 & 21 Vict. c. 3, s. 2, for not less than three years. See 
 54 & 55 Vict. c. 69, ante, p. 79.
 
 chap, vii.] Seducing Soldiers or Sailors to Desert or Mutiny. 259 
 
 A sailor in a sick hospital, where he had been for thirty days, and 
 who therefore was not entitled to pay, nor liable for what he then 
 did to answer before a court-martial, is nevertheless a person serving 
 in his Majesty's forces by sea within this statute, so as to make the 
 seducing him an offence within its provisions, (b) 
 
 An indictment upon this statute need not set out the means used 
 for seducing the soldier from his duty and allegiance ; and it need not 
 aver that the prisoner knew the person endeavoured to be seduced to 
 be a soldier. It seems also that a double act, namely, that the pris- 
 oner endeavoured to incite a soldier to commit mutiny, and also to 
 commit traitorous and mutinous practices, may be charged in one 
 count of the indictment.' (cd) 
 
 By sec. 153 of the Army Act, 1881, ( e) which is continued by the 
 Annual Mutiny Act, persons inducing soldiers to desert may be sum- 
 marily convicted. (/) 
 
 (b) R. v. Tierney, Mich. T. 1804. R. & (e) 44 & 45 Viet. c. 58. 
 
 R. 74. (/) As to militia, see 45 & 46 Vict. 
 
 (cd) Fuller's case, 2 Leach, 790. 1 East, c. 49, s. 25. As to reserved forces, 45 & 46 
 
 P. C. c. 2, s. 33, p. 92. 1 Bos. and Pul. Vict. c. 48, s. 17. As to navy, see 29 30 
 
 180. Vict. c. 109, ss. 19-24.
 
 CHAPTER THE EIGHTH. 
 
 OF PIRACY. 1 
 
 Sec. I. 
 Of Piracy at Common Law, 2 and by Statute. 
 
 The offence of piracy at common law consists in committing those 
 acts of robbery and depredation upon the high seas which, if com- 
 mitted upon land, would have amounted to felony there, (a) It is 
 not a felony which was triable by jury at common law, but it was 
 only punishable by the civil law before the 28 Hen. 8, c. 15 ; and 
 this statute, though it makes the offence capital, and provides for the 
 trial of it according to the course of the common law, by the King's 
 special commission, does not make it a felony ; therefore, a pardon 
 of all felonies generally does not extend to it. (b) 
 
 The offence of piracy is also provided against by several statutes. 
 The 11 & 12 Will. 3, c. 7, s. 8, enacts, 'that if any of his Majesty's, 
 natural-born subjects, or denizens of this kingdom, shall commit any 
 piracy or robbery, or any act of hostility against others his Majesty's 
 subjects, upon the sea, under colour of any commission from any for- 
 eign prince or state, or pretence of authority from any person whatso- 
 
 (a) 1 Hawk. P. C. c. 37, s. 4. 4 Blac. 
 Com. 72. 2 East, P. C. c. 17, s. 3. p. 796. 
 
 (b) 1 Hawk. P. C. c. 37, s. 13. 3 Inst. 
 112. Co. Lit. 391. Moor, 746. 2 East, 
 P. C. c. 17, s. 3, p. 796, where it is said 
 that the offence does not extend to cor- 
 ruption of blood, at least where the con- 
 viction is before the Admiialtyjurisdiction ; 
 though the contrary is holden by great 
 authority upon attainder before commis- 
 sioners, under the statute of Hen. 3. A 
 fallacy seems to run through some of our 
 books in saying that piracy was not felony 
 
 at common law ; this arose from such ex- 
 pressions as that it was a crime of which 
 the common law did not take notice or cogni- 
 zance, — i. e., which was not triable by jury, 
 the common law mode of trial. See 2 Hale, 
 18, 370. 1 Hale, 355. Lord Coke savs it 
 was felony, Co. Lit. 391 a. 3 Inst. 112. 
 13 Rep. 51. In 40 Ass. PI. 25, p. 245, a 
 case of piracy is mentioned where a Nor- 
 man captain was attainted of felony and 
 hanged. See this case stated, 3 Inst. 21, 
 and 1 Hale, 100. 
 
 American Notes. 
 
 1 In America the law relating to Piracy 
 is contained in Acts of Congress. See Act 
 of April 30, 1790. Act of March 3, 1819. 
 Robbery on the high seas is piracy both by 
 the law of nations and by the Acts of Con- 
 gress. U. S. v. Furlong, 5 Wheat. 164. As 
 to mutiny on board ship, see U. S. v. Sharp, 
 1 Peters/C. C. 122; U. S. v. Bladen, ib. 213; 
 U. S. v. Gardiner, 5 Mason, 402 ; U. S. v. 
 Kelly, 4 Wash. C. C. 528. As to running 
 away with a ship, see U. S. v. Haskell, 4 
 Wash. C. C. 402. 
 
 2 Piracy at common law is robbery on 
 the high seas directed against all mankind; 
 but under the statutes relating to this 
 offence, persons (Southern States rebels) 
 were guilty of piracy who planned and car- 
 ried out attacks on American vessels only. 
 See the case of the Savannah Pirates, cited 
 in note to Bishop, vol. ii. s. 1058. And see 
 Statute of 1890, c. 9, s. 8, and U. S. v. 
 Palmer, 3 Wheat. 610 ; Klintock's case, 5 
 Wheat. 144, 184; The Malek Adhel, 2 How. 
 U. S. 219.
 
 CHAP, vin.] Of Piracy by Statute. 261 
 
 ever, such offender and offenders shall be deemed, adjudged, and taken 
 to be pirates, felons, and robbers ; ' and being duly convicted thereof, 
 according to that Act, or the 28 Hen. 8, c. 15, shall suffer such pains 
 of death, (c) and loss of lands, goods, and chattels, as pirates, &c, upon 
 the seas ought to suffer. And the 18 Geo. 2, c. 30, enacts, ' that all 
 persons, being natural-born subjects or denizens of his Majesty, who 
 during any war shall commit any hostilities upon the sea, or in any 
 haven, river, creek, or place, where the admiral or admirals have power, 
 authority, or jurisdiction, against his Majesty's subjects, by virtue or 
 under colour of any commission from any of his Majesty's enemies, 
 or shall be any other ways adherent, or giving aid or comfort to his 
 Majesty's enemies upon the sea, or in any haven, river, creek, or place, 
 where the admiral or admirals have power, authority, or jurisdiction, 
 may be tried as pirates, felons, and robbers in the said Court of Ad- 
 miralty, on ship-board, or upon the land, in the same manner as per- 
 sons guilty of piracy, felony, and robbery, are by the said Act(d) 
 directed to be tried ; and such persons being upon such trial con- 
 victed thereof, shall suffer such pains of death, (e) loss of lands, 
 &c, (ee) as any other pirates, felons, and robbers ought, by virtue of 
 the 11 & 12 Will. 3, c. 7, or any other Act, to suffer.' (/) 
 
 Sec. 9 enacts, ' that if any commander or master of any ship, or any 
 seaman or mariner, shall, in any place where the admiral hath juris- 
 diction, betray his trust, and turn pirate, enemy, or rebel, and pirati- 
 cally and feloniously run away with his or their ship or ships, or any 
 barge, boat, ordnance, ammunition, goods, or merchandize ; or yield 
 them up voluntarily to any pirate ; or shall bring any seducing mes- 
 sage from any pirate, enemy, or rebel ; or consult, combine, or confed- 
 erate with, or attempt or endeavour to corrupt any commander, master, 
 officer, or mariner, to yield up or run away with any ship, goods, or 
 merchandizes, or turn pirates, or go over to pirates ; or if any person 
 shall lay violent hands on his commander, whereby to hinder him 
 from fighting in defence of his ship, and goods committed to his 
 trust, (g) or shall confine his master, or make or endeavour to make 
 a revolt in the ship, he shall be adjudged, deemed, and taken to be a 
 pirate, felon, and robber, and being convicted thereof according to the 
 direction of this Act, shall suffer death (e) and loss of lands, goods, 
 and chattels, (ee) as pirates, felons, and robbers upon the seas ought 
 to suffer.' 
 
 In an indictment for confining a captain of a ship, ' constructive ' 
 confinement will satisfy the requirements of the statute, and this will 
 be supported by evidence that, although no force was used, the cap- 
 
 (c) Repealed by 1 Vict. c. 88, s. 1. See according thereto, from being tried for high 
 sec. 2, &c. , post, p. 262. treason with this realm, according to the 
 
 (d) 11 & 12 Will. 3, c. 7. stat. 28 Hen. 8, c. 15. 
 
 (e) Repealed by 1 Vict. c. 88, s. 1. (g) This last provision is similar to one 
 (ee) As to the present law in lieu of for- in the 22 & 23 Car. 2, c. 11, s. 9, which is 
 
 feiture for felony, see ante, p. 108. repealed by 9 Geo. 4, c. 31, s. 1, so far as 
 
 (/) Sec. 2 contains a proviso that any relates to any mariner laving violent hands 
 
 person tried and acquitted, or convicted on his commander. This statute of Car. 2 
 
 according to the Act, shall not be liable to contains also some provisions as to yielding 
 
 be indicted, &c, again in Great Britain or without fighting, and as to mariners declin- 
 
 elsewhere, for the same crime or fact as high ing or refusing to fight and defend the ship 
 
 treason. But by sec. 3 the Act is not to when commanded by the master, 
 prevent any offender, who shall not be tried
 
 262 Punishment of Piracy. [book ii. 
 
 tain was restrained by the presence and gestures of the prisoners, and 
 deprived of his lawful command, and compelled to remain in certain 
 parts ot the vessel. (Ji) 
 
 By the 8 Geo. 1, c. 24, s. 1, ' in case any person or persons belonging 
 to any ship or vessel whatsoever, upon meeting any merchant ship or 
 vessel on the high seas, or in any port, haven, or creek whatsoever, 
 shall forcibly board or enter into such ship or vessel, and though they 
 do not seize or carry off such ship or vessel, shall throw overboard or 
 destroy any part of the goods or merchandizes belonging to such ship 
 or vessel ; the person or persons guilty thereof, shall in all respects 
 be deemed and punished as pirates aforesaid.' 
 
 Sec. 1 further enacts ' that if any commander or master of any ship 
 or vessel, or any other person or persons, shall anywise trade with 
 any pirate by truck, barter, exchange, or in any other manner, or shall 
 furnish any pirate, felon, or robber upon the seas, with any ammu- 
 nition, provision, or stores of any kind ; or shall fit out any ship or 
 vessel knowingly, and with a design to trade with, or supply, or cor- 
 respond with any pirate, felon, or robber upon the seas ; or if any 
 person or persons shall any ways consult, combine, confederate, or 
 correspond with any pirate, felon, or robber, on the seas, knowing 
 him to be guilty of any such piracy, felony, or robbery, every such 
 offender and offenders shall be deemed and adjudged guilty of piracy, 
 felony, and robbery.' The Act further provides that every offender 
 convicted of any piracy, felony, or robbery, by virtue of the Act, 
 shall not be admitted to have the benefit of clergy.' (i) 
 
 The 1 Vict. c. 88 (which came into operation on the 1st October, 
 1837) (j) s. 1, repeals so much of the 28 Hen. 8, c. 15 ; 11 & 12 Will. 
 3, c. 7 ; 4 Geo. 1, c. 11, s. 7 ; 8 Geo. 1, c. 24, and 18 Geo. 2, c. 30, 'as 
 relates to the punishment of the crime of piracy, or of any offence by 
 any of the said Acts declared to be piracy, or of accessories thereto 
 respectively.' (Jc) 
 
 Sec. 2 enacts, ' That from and after the commencement of this Act 
 whosoever, with intent to commit or at the time of or immediately 
 before or immediately after committing the crime of piracy in respect 
 of any ship or vessel, shall assault, with intent to murder, any person 
 being on board of or belonging to such ship or vessel, or shall stab, cut, 
 or wound any such person, or unlawfully do any act by which the life 
 of such person may be endangered, shall be guilty of felony, and being 
 convicted thereof shall suffer death as a felon.' (I) 
 
 (h) R. v. Jones, 11 Cox, C. C. 393. any subject of his Majesty, or goods on board 
 
 (?) Sec. 4 (but see now 1 Vict. c. 88, the same, which shall be captured by the 
 
 infra, as to the punishment), and by sec. 2 subjects of any state at war with his Majesty, 
 
 every vessel fitted out to trade, &c, with or by any persons committing hostilities 
 
 pirates, and also the goods shall be forfeited, against his Majesty's subjects, 
 half to the Crown and half to the informer. (j) By sec. 7. 
 
 Offenders against this Act are to be tried (k) The 37 & 38 Vict. c. 35, repeals this 
 
 according to the 28 Hen. 8, c. 15, and 11 & enactment, but the Acts repealed by it are 
 
 12 Will. 3, c. 7. In the second edition, the not thereby revived ; see 13 & 14 Vict. c. 21, 
 
 32 Geo. 3, c. 25, s. 12, was here inserted, s. 5. 
 
 but as that Act was only to continue in force (I) This sentence may be recorded by the 
 during the then war with France, it seems 4 Geo. 4, c. 48, s. 1, and where the in- 
 to have expired. See 2 East, P. C. c. 17, dictment charges a stabbing, cutting, or 
 s. 7, p. 801 n. (a), and Crabb's Index to the wounding, the jury may acquit of the felony, 
 Statutes, C. S. G. The 22 Geo. 3, c. 25, and convict of the stabbing, cutting, or 
 prohibits ransoming any ship belonging to wounding, by the 14 & 15 Vict. c. 19, s. 5.
 
 chap, viii.] Of Piracy by Statute. 263 
 
 Sec. 3. ' From and after the commencement of this Act whosoever 
 shall be convicted of any offence which by any of the Acts herein- 
 before referred to amounts to the crime of piracy, and is thereby 
 made punishable by death, shall be liable, at the discretion of the 
 Court, to be transported (m) beyond the seas for the term of the 
 natural life of such offender, or for any term not less than fifteen 
 years (n), or be imprisoned for any term not exceeding three years.' 1 
 
 Sec. 4. ' In the case of every felony punishable under this Act every 
 principal in the second degree and every accessory before the fact shall 
 be punishable with death or otherwise in the same manner as the 
 principal in the first degree is by this Act punishable ; and every 
 accessory after the fact to any felony punishable under this Act shall, 
 on conviction, be liable to be imprisoned for any term not exceeding 
 two years.' 
 
 Sec. 5. (nn) ' Where any person shall be convicted of any offence 
 punishable under this Act for which imprisonment may be awarded, 
 it shall be lawful for the Court to sentence the offender to be impris- 
 oned, or imprisoned and kept to hard labour, in the common gaol or 
 house of correction, and also to direct that the offender shall be kept 
 in solitary confinement for any portion or portions of such imprison- 
 ment, or of such imprisonment with hard labour, not exceeding one 
 month at any one time, and not exceeding three months in any one 
 year, as to the Court in its discretion shall seem meet.' (o) 
 
 (m) Penal servitude, by the 20 & 21 Vict, guilty of any capital crime or offence com- 
 
 c. 3, s. 2. mitted upon the sea, which, if committed 
 
 (n) Not less than three years, see 54 and upon the land would be clergyable, is en- 
 
 55 Vict. c. 69. 1 titled to the benefit of clergy in like man- 
 
 (nn) It seems that the 37 & 38 Vict. c. 35, ner as if he had committed such offence 
 
 repeals this section. upon land. By the 7 & 8 Geo. 4, c. 28, 
 
 (o) This statute having repealed the s. 6, clergy was abolished; and by sec. 7 
 punishment of piracy at common law, which no person convicted of felony was to suffer 
 was before punishable by the 28 Hen. 8, death unless for some felony excluded from 
 c. 15, s. 3, with death without benefit of clergy, on or before the first day of that 
 clergy, a difficulty arises as to what is now session of Parliament ; and by sec. 12, ' all 
 the punishment for that offence. The 39 offences prosecuted in the High Court of 
 Geo. 3, c. 37, s. 1, provides, ' That all and Admiralty shall, upon every first and sub- 
 every offence and offences, which, after sequent conviction, be subject to the same 
 the passing of this Act, shall be committed punishments, whether of death or otherwise, 
 upon the high seas out of the body of any as if such offences had been committed upon 
 county of this realm shall be, and they are land.' See also the Criminal Law Consolida- 
 hereby declared to be offences of the same tion Acts of 1861. By the 4 & 5 Will. 4, 
 nature respectively, and to be liable to the c. 36 piracy may now be tried at the Cen- 
 same punishments respectively, as if they tral Criminal Court. By some writers piracy 
 had been committed upon the shore, and at common law is defined to be the coin- 
 shall be inquired of, heard, tried, and deter- mitting those acts of robbery and depreda- 
 mined, and adjudged in the same manner as tion on sea which, if committed on land, 
 treasons, murders, and conspiracies are di- would have amounted to felony. 1 Hawk, 
 rected to be by the same Act' (28 Hen. 8, c. 37, s. 4. 4 Bla. Com. 72. 2 East, P. C. 
 c. 15. It should seem, therefore, that this c. 17, s. 3, p. 796. Mason's case, post, 
 Act, by making all offences committed on note (?•). By others it seems to be con- 
 sea of the same nature as if they were com- sidered the same offence as robbery on 
 mitted on shore, has made piracy at com- land. Archb. Vict. Acts, 72. 2 Hale, 369. 
 mon law a felony, which it was not at 1 Hale, 354. 3 Inst. 113, where Lord Coke 
 common law, or by the 28 Hen. 8, c. 15. calls a pirate ' a robber upon the sea.' On 
 By the 1 Geo. 4, c. 90, any person found the whole it seems that each act of piracy at 
 
 American Note. 
 
 1 By the Revised Statutes of the United States the crime of piracy against the law of 
 nations is punishable by death.
 
 264 Cases of Piracy. [book ii. 
 
 Prior to the statutes (except the statute of Hen. 8), several mari- 
 ners on board a ship lying near the Groyne seized the captain, he 
 not agreeing with them ; and having put him on shore, carried 
 away the ship, and afterwards committed several piracies. This 
 force upon the captain, and the carrying away the ship, which was 
 explained by the use of it afterwards, was adjudged piracy, (p) But 
 where the master of a vessel loaded goods on board at Rotterdam 
 consigned to Malaga, which he caused to be insured, and after he had 
 run the goods on shore in England the ship was burned, when he 
 protested both the ship and cargo as burned, with intent to defraud 
 the owner and insurers ; the judges of the common law, who assisted 
 the judges of the Admiralty, directed an acquittal upon au indictment 
 for piracy and stealing the goods ; because being only a breach of 
 trust and no felony, it could not be piracy to convert the goods in a 
 fraudulent manner until the special trust was determined, (q). 
 
 Making or endeavouring to make a revolt, with a view to procure a 
 redress of what the prisoners thought grievances, and without any 
 intent to run away with the ship, or to commit any act of piracy, 
 was held to be an offence within the 11 & 12 Will. 3, c. 7, s. 9. (r) 
 
 Where one count charged the prisoners with making, and another 
 with endeavouring to make a revolt in a ship, it appeared that great 
 complaints had been made by the sailors in the course of the voy- 
 age about the provisions and the great heat of the cabin where 
 the men had to sleep, which on account of the fire for cooking, 
 &c, being close to it, was unsupportable in the warm latitudes. On 
 the 30th of September the prisoner M. refused to go on duty, and 
 remained off duty till the following day, when he was again desired 
 to work, and again refused, using at different times violent and 
 threatening language. The captain in consequence ordered the crew 
 to put M. in irons, but instead of obeying him they walked away 
 forward. The prisoner S. had the same morning refused to go to 
 his duty, and he and one G. went towards the captain, who was 
 endeavouring, with the assistance of his officers, to put M. in irons. 
 Violent language was used by both, and threats uttered against 
 the captain, to induce him to alter his determination, and G. rushed 
 to a boat where spears used in the whale-fishery were kept, with 
 the evident intention of seizing one of them, and releasing M. by 
 force. The captain shot G. in the act of laying hold of a spear. 
 Lord Abinger, C. B. : ' By revolt I understand something like rebel- 
 lion or resistance to lawful authority, and if the crew of a ship com- 
 bine together to resist the captain, especially if the object be to deprive 
 him of his authority altogether, it will in my opinion amount to 
 making a revolt. I think upon the construction of this Act of Parlia- 
 ment that the resistance of one person to the authority of the captain 
 would not be a revolt. Revolt means something more than the dis- 
 common law is now a felony of the same 1696, MS. Trac} T , 77- 2 East, P. C. c. 17, 
 kind, and liable to the same punishment, as s. 3, p. 796. 
 
 if the same act had been done upon land, (q) Mason's case, Old Bailey, 9 Geo. 1, 
 
 and the offender is triable either under a on a special commission, 8 Mod. 74. 2 East, 
 commission founded on the 28 Hen. 8, c. 15, P. C. c. 17, s. 3, p. 796, S. C. 
 or at the Central Criminal Court, or at the (r) P. v. Hastings and Meharg, East. T. 
 
 assizes. C. S. G. 1825. Ry. & Mood. 82. 
 
 (p) R. v. May, Bishop, and others, Nov.
 
 CHAP, viil] Of Piracy by Statute. 265 
 
 obedience of one man. I think it would be straining the evidence 
 rather too far to say that the conduct of these men amounted to a 
 revolt ; and the charge of making a revolt, if my construction of the 
 Act be correct, will fall to the ground. The question of whether the 
 ship was properly fitted up and found is not material ; for it has 
 been decided that, although there be real grievances to redress, yet it 
 is not an answer to a charge of attempting to make a revolt. If G. 
 and the prisoners were united in some common design to prevent the 
 captain from putting M. in irons, which on the evidence he had a 
 sufficient justification in doing, and calling upon others of the crew to 
 assist them in resisting the captain's authority, then I think that it 
 was an attempt to excite a revolt.' (s) 
 
 On an indictment upon the 11 & 12 Will. 3, c. 7, s. 9, it appeared 
 that the prisoners were two of the mates and the others mariners 
 of a merchant ship, and the captain seeing something in the man- 
 ner of a sailor which displeased him spoke sharply to him and 
 ordered him to leave the helm, and called to some one else to take 
 his place, and he ordered the sailor to go and grease the masts, 
 which the captain thought necessary to be done. The sailor per- 
 emptorily refused, and the captain on that ordered all hands up : 
 he desired the mates to have the masts greased, which the men re- 
 fused to do, and said that it was the duty of the boys, and that 
 whilst there were boys on board they would not. The captain posi- 
 tively insisted, and the men as positively refused. He then said, ' If 
 that 's the case, I '11 put you on short commons ; that beef which is 
 lying there you sha' n't have,' and ordered it to be taken below, on 
 which there was a peremptory refusal to let him have it. The cap- 
 tain, who saw that this did not meet with the slightest opposition 
 from the mates, perceived the disposition to mutiny, and that he 
 must act at once or there would be no authority, went down and 
 armed himself with a cutlass, came again on deck, and said, ' Give me 
 that beef ! ' and speaking to the steward said, ' Take it below, and the 
 first man who interferes, I will exercise my authority, and cut him 
 down with the instrument with which I am armed.' The steward, 
 seeing the captain was not to be trifled with, obeyed ; the beef was 
 taken down and the captain put away his cutlass, and, after stay- 
 ing on deck some time, went down, and had his dinner, and then 
 believing he had done sufficient to assert his authority, he sent the 
 beef back, and allowed the crew to have their dinners. After the 
 beef was taken away, the men all refused to do anything, and went 
 below : however, the captain thought that all this had passed away. 
 After this the steward requested the captain to come on deck, as the 
 men wanted to speak to him. He went on deck, was made prisoner, 
 and confined in his cabin, the vessel put about, and brought to 
 Plymouth by the mate and crew, and there the crew made a com- 
 plaint against the captain. Williams, J., told the jury that in con- 
 sidering the meaning of the terms used in the statute he must tell 
 them that confederating together and making a revolt constituted the 
 offence charged, unless they were satisfied that there was some justi- 
 fiable cause. The great question for their consideration was, whether 
 
 (s) R. v. M'Gregor, 1 C. & K. 429.
 
 266 Cases of Piracy. [book ii. 
 
 or not there was any justification for this unquestionable confinement 
 of the captain. Did, therefore, his conduct afford any justification 
 for that step ? He was bound to tell them that, according to the 
 authorities, a seaman was not justified in making a revolt in a ship, 
 or in imprisoning his captain, by reason of that captain having been 
 unjust or unreasonable ; it was not to be allowed that seamen should 
 take the law into their own hands, because the captain had issued an 
 unjust order, or had conducted himself in a harassing or embarrassing 
 manner. If the rule of law was that whenever the seamen consid- 
 ered the captain's conduct unreasonable and rash, they could take 
 charge of the ship, there would be an end to all maritime discipline. 
 It was necessary, for the due maintenance of discipline, that mutiny 
 and revolt, if not justifiable, should be punished as a crime in the 
 merchant service as well as in the royal navy. In his opinion, in 
 point of law, it was justifiable in one view only, namely, if the con- 
 duct of the captain had been such as to afford reasonable ground for 
 concluding that, unless the men had imprisoned him, the crew, or 
 some one or more of them, would have been in danger of their lives, 
 or of suffering some grievous bodily harm from his conduct. If they 
 thought that was made out, and that the conduct of the captain was 
 such that the lives of the crew were in danger unless he were impris- 
 oned, then there was a justification. But if they should not come to 
 the conclusion that there was reasonable ground for this belief, then, 
 in point of law, they ought to find the prisoners guilty, (t) 
 
 On an indictment under the same section, for making a revolt in a 
 merchant ship, it appeared that the prisoners formed part of the crew 
 of a steamer trading between London and Holland ; their register 
 tickets were deposited with the captain, but no agreement in writing 
 had been entered into with them previously to their sailing on the 
 voyage during which the revolt was made, and the Recorder held that 
 the prisoners were not mariners, or seamen; the 7 & 8 Vict. c. 112, 
 s. 2, (u) made any contract other than the agreement thereby required 
 illegal, and therefore the relation of commander and mariner did not 
 exist, (v) 
 
 Upon an indictment on the 18 Geo. 2, c. 30, a question was made 
 whether adhering to the King's enemies in hostilely cruising in their 
 ships could be tried as piracy under the usual commission granted 
 by virtue of the 28 Hen. 8, c. 15. The 18 Geo. 2, recites that 
 doubts had arisen whether subjects entering into the service of the 
 King's enemies on board privateers and other ships, having com- 
 missions from France and Spain, and having by such adherence been 
 guilty of high treason, could be deemed guilty of felony within the 
 intent of the 11 & 12 Will. 3, c. 7, and be triable by the Court of 
 Admiralty appointed by virtue of the said Act ; and then enacts that 
 persons who shall commit hostilities upon the sea, &c, against his 
 Majesty's subjects by virtue or under colour of any commission from 
 any of his Majesty's enemies, or shall be any otherwise adherent to 
 
 (/) R. v. Rose, 2 Cox, C. C. 329. As re- the crew would not be justified in imprison- 
 
 ported, this direction is open to the objection ing him for using such force for that pur- 
 
 that it did not inform the jury that the cap- pose ; but, no doubt, the learned judge did so 
 
 tain mi^ht lawfully use any force that was direct the jury. 
 
 reasonably necessary to retain the command (u) Repealed by the 17 & 18 Vict. c. 120. 
 
 of the vessel and stop the revolt, and that (;') R. v. Smith, 3 Cox, C. C. 443.
 
 chap, viii.] Of Piracy by Statute. 267 
 
 his Majesty's enemies upon the sea, &c, may be tried as pirates, 
 felons, or robbers, in the said Court of Admiralty in the same manner 
 as persons guilty of piracy, felony, and robbery, are by the said Act 
 directed to be tried ; but it does not say that they shall be deemed 
 pirates, &c, as in the 11 & 12 Will 3, c. 7. The prisoner having been 
 convicted, the question was reserved for consideration of the judges ; 
 and it was agreed by eight who were present, (w) that the prisoner 
 had been well tried under the commission. For that taking the 11 & 
 12 Will. 3, and 18 Geo. 2 together, and the doubt raised in the latter, 
 and also its enactment that in the instances therein mentioned, and 
 also in case of any other adhering to the King's enemies, the parties 
 might be tried as pirates by the Court of Admiralty according to that 
 statute, it was substantially declaring that they should be deemed 
 pirates; and that it was a just construction in their favour to allow 
 them to be tried as such by a jury, (x) 
 
 Accessories to piracy were triable only by the civil law if their 
 offence was committed on the sea, and were not triable at all if 
 their offence was committed on land, until the 11 & 12 Will. 3, 
 c. 7, s. 10, which enacts, 'that every person and persons whatso- 
 ever, who shall either on the land or upon the seas, knowingly or 
 wittingly set forth any pirate ; or aid and assist, or maintain, procure, 
 command, counsel, or advise, any person or persons whatsoever, to do 
 or commit any piracies or robberies upon the seas ; and such person 
 or persons shall thereupon do or commit any such piracy or robbery, 
 then all and every such person or persons whatsoever, so as aforesaid 
 setting forth any pirate, or aiding, assisting, maintaining, procuring, 
 commanding, counselling, or advising, the same either on the land or 
 upon the sea, shall be and are hereby declared, and shall be deemed 
 and adjudged to be accessory to such piracy and robbery, done and 
 committed ; and further, that after any piracy or robbery is or shall 
 be committed by any pirate or robber whatsoever, every person and 
 persons, who, knowing that such pirate or robber has done or com- 
 mitted such piracy and robbery, shall, on the land or upon the sea, 
 receive, entertain, or conceal any such pirate or robber, or receive or 
 take into his custody any ship, vessel, goods, or chattels, which have 
 been by any such pirate or robber piratically and feloniously taken ; 
 shall be, and are hereby likewise declared, deemed, and adjudged to be 
 accessory to such piracy and robbery.' And then the statute directs, 
 ' that all such accessories to such piracies and robberies shall be 
 inquired of, tried, heard, determined, and adjudged, after the common 
 course of the laws of this land, according to the 28 Hen. 8, as the 
 principals of such piracies and robberies may and ought to be, and no 
 otherwise : and being thereupon attainted, shall suffer such pains of 
 death, (?/) losses of lands, goods, and chattels, (yy) and in like manner, 
 as such principals ought to suffer, according to the 28 Hen. 8, which 
 is thereby declared to continue in full force.' 
 
 (w) Lord Loughborough, Lord C. B. according thereto from being tried for high 
 
 Skynner, Gould, J., Willes, J., Ashurst, J., treason within this realm according to the 
 
 Eyre, B., Perryn, B., and Heath, J., who stat. 28 Hen. 8, c. 15. 
 met Nov. 11, 1782. (y) See 1 Vict. c. 88, s. 4, as to the pun- 
 
 (x) Evans's case, MS. Gould, J., 1 East, ishment of accessories. 
 P. C. c. 17, s. 5, pp. 798, 799. The 18 Geo. (yy) As to the present law in lieu of for- 
 
 2, c. 30, s. 3, provides that the Act shall not feiture for treason or felony, see ante, p. 108. 
 prevent any offender who shall not be tried
 
 268 Trial of Piracy. [book ii. 
 
 The 8 Geo. 1, c. 24, however, made an alteration with respect to 
 the accessories described in 11 & 12 Will. 3, and declared them to 
 be principals, and that they should be tried accordingly. Sec. 3, re- 
 citing that ' whereas there are some defects in the laws for bringing 
 persons who are accessories to piracy and robbery upon the seas to 
 condign punishment, if the principal who committed such piracy or 
 robbery is not or cannot be apprehended and brought to justice,' 
 enacts, 'that all persons whatsoever, who by the 11 & 12 Will. 3, 
 are declared to be accessory or accessories to any piracy or robbery 
 therein mentioned, are hereby declared to be principal pirates, felons, 
 and robbers, and shall and may be inquired of, heard, determined, 
 and adjudged, in the same manner as persons guilty of piracy and 
 robbery may, according to that statute ; and being thereupon attainted 
 and convicted, shall suffer death (z) and loss of lands, &c, (zz) in like 
 manner as pirates and robbers ought by the said Act to suffer.' 
 
 One who knowingly received and abetted a pirate within the body 
 of a county was not triable by the common law, the original offence 
 being cognizable alone by another jurisdiction, (a) But see now the 
 24 & 25 Vict. c. 94, s. 9. (b) 
 
 Sec. II. 
 
 Of the Court by ivhich the Offence of Piracy may be tried. 
 
 The offence of piracy was formerly cognizable only by the Admiralty 
 Courts, which proceeded without a jury, in a method much conformed 
 to the civil law. But it being inconsistent with the liberties of the 
 nation that any man's life should be taken away, unless by the judg- 
 ment of his peers, or the common law of the land, the 28 Hen. 8, c. 15, 
 established a new jurisdiction. That statute enacted, that this offence 
 should be tried by commissioners nominated by the Lord Chancellor, 
 the indictment being first found by a grand jury of twelve men, and 
 afterwards tried by another jury as at common law, and that the course 
 of proceeding should be according to the law of the land. Amongst the 
 commissioners there were always some of the common-law judges ; (c) 
 and by the Admiralty Court, thus constituted, the offence of piracy, 
 and other marine offences, may now be tried. But the 28 Hen. 8 
 merely altered the mode of trial in the Admiralty Court ; and its 
 jurisdiction still continues to rest on the same foundations as it did 
 before that Act. It is regulated by the civil law, et per consuetudines 
 marinas grounded on the law of nations, which may possibly give to 
 that Court a jurisdiction that our common law has not. (d) 
 
 (z) See note (y), ante, p. 267 ; and see King's Bench holding, that because Scad- 
 ante, \>. 262. ding's offence depended on the piracy 
 
 (z:) As to the law in lieu of forfeiture for committed by the principal, of which the 
 
 treason or felony, see ante, p. 108. temporal judges had no cognizance, and was, 
 
 (") Admiralty case, 13 Co. 53. And a as it were, an accessorial offence to the first 
 little before this case the law appears to have piracy which was determinable by the ad- 
 been so considered in the case of one Scad- miral, it was sufficient ground for remanding 
 ding, who was committed by the Court of him. Yelv. 134. 2 East, P. C. c. 17, s. 14, 
 Admiralty for aiding a pirate to escape out p. 810. 
 of prison ; and, on a return to a habeas cor- (b) Ante, p. 184. 
 pus, the prisoner was remanded, though it (c) Generally two. 4 Blac. Com. 269. 
 appeared that the fact was committed by him (d) By Mansfield, C. J. R. v. Depardo, 
 within the body of a county. The Court of 1 Taunt. 29.
 
 CHAPTER THE NINTH. 
 
 OF NEGLECTING QUARANTINE, OF SPREADING CONTAGIOUS 
 DISORDERS, AND OF INJURY TO THE PUBLIC HEALTH. 
 
 Sec. I. 
 Of Neglecting Quarantine. 
 
 The performance of quarantine, or forty days' probation, when 
 ships arrive from countries infected with contagious disorders, having 
 been considered as of the highest importance, with reference to the 
 public health of the nation, has been enforced from time to time by 
 various legislative enactments. These were formerly of considerable 
 severity : but the 6 Geo. 4, c. 78, repeals all former Acts upon this 
 subject, and enforces the performance of quarantine principally by 
 pecuniary penalties, and these are left to the discretion of the justices 
 or court, under 29 & 30 Vict. c. 90, s. 51. (a) Some offences, how- 
 ever, subject the offender to imprisonment, and some are of the degree 
 of felony. It may be here observed, that in a case which arose upon 
 26 Geo. 2, c. 6, which enacted, that all persons going on board ships 
 coming from infected places should obey such orders as the King in 
 Council should make, but did not award any particular punishment, 
 nor contain a clause as to the jurisdiction of the justices of the 
 peace, it was holden that disobedience of such an Order of Council 
 was an indictable offence, and punishable as a misdemeanor at 
 common law. (b) 
 
 By the 6 Geo. 4, c. 78, s. 17, ' If any commander, master, or 
 other person, having charge of any vessel liable to perform quaran- 
 tine, and on board of which the plague, or other infectious disease 
 or distemper, shall not then have appeared, shall himself quit, or 
 shall knowingly permit or suffer any seaman or passenger coming 
 in such vessel to quit such vessel, by going on shore, or by going 
 on board any other vessel or boat, before such quarantine shall be 
 fully performed, unless by such licence as shall be granted by virtue 
 of any Order in Council, to be made concerning quarantine as afore- 
 said, or in case any commander or other person having charge of 
 such vessel shall not, within a convenient time after due notice 
 given for that purpose, cause such vessel, and the lading thereof, to 
 be conveyed into the place or places appointed for such vessel and 
 
 (a) By 38 & 39 Vict. c. 55, sched. 5, such penalties to such sum as the justices or 
 
 part 3, 'all penalties imposed by the 6 court think just.' 
 
 Geo. 4, c. 78, may be reduced by the justices (h) R. v. Harris, 4 T. R. 202, 2 Leach, 
 
 or court having jurisdiction in respect of 549.
 
 270 Of Neglecting Quarantine. [book II. 
 
 lading to perform quarantine ; then, and in every such case every 
 such commander, master, or other person as aforesaid, for every such 
 offence shall forfeit and pay the sum of four hundred pounds ; and 
 if any such person coming in any such vessel liable to quarantine 
 (or any pilot or other person going on board the same, either before 
 or after the arrival of such vessel at any port or place in the United 
 Kingdom, or the islands aforesaid), shall, either before or after such 
 arrival, quit such vessel, unless by such licence as aforesaid, by going 
 on shore in any port or place in the United Kingdom, or the islands 
 aforesaid, or by going on board any other vessel or boat, with intent 
 to go on shore as aforesaid, before such vessel so liable to quarantine 
 as aforesaid shall be regularly discharged from the performance 
 thereof, it shall and may be lawful for any person whatsoever, by 
 any kind of necessary force, to compel such pilot or other person so 
 quitting such vessel so liable to quarantine, to return on board the 
 same ; and every such pilot or other person so quitting such vessel 
 so liable to quarantine shall for every such offence suffer imprison- 
 ment for the space of six months, and shall forfeit and pay the sum 
 of three hundred pounds.' 
 
 Sec. 21. 'If any officer of his Majesty's customs, or any other officer 
 or person whatsoever, to whom it doth or shall appertain to execute 
 any order or orders made or to be made concerning quarantine, or the 
 prevention of infection, as notified as aforesaid, or to see the same put 
 in execution, shall knowingly and wilfully embezzle any goods or arti- 
 cles performing quarantine, or be guilty of any other breach or neglect 
 of his duty in respect of the vessels, persons, goods, or articles, perform- 
 ing quarantine, every such officer or person so offending shall forfeit 
 such office or employment as he may be possessed of, and shall become 
 from thence incapable to hold or enjoy the same, or to take a new grant 
 thereof ; and every such officer and person shall forfeit and pay the 
 sum of two hundred pounds : and if any such officer or person shall 
 desert from his duty when employed as aforesaid, or shall knowingly 
 and willingly permit any person, vessel, goods, or merchandize, to 
 depart or to be conveyed out of the said lazaret vessel or other place 
 as aforesaid, unless by permission under an order of his Majesty, by 
 and with the advice of his council, or under an order of two or more 
 of the lords or others of his privy council ; or if any person hereby 
 authorized and directed to give a certificate of a vessel having duly 
 performed quarantine or airing, shall knowingly give a false certificate 
 thereof, every such person so offending shall be guilty of felony ; (c) 
 and if any such officer or person shall knowingly or wilfully damage 
 any goods performing quarantine under his direction, he shall be 
 liable to pay one hundred pounds damages, and full costs of suit, to 
 the owner of the same.' (cc) 
 
 Sec. 36 enacts, that in any prosecution, suit, or other proceedings 
 against any person, for any offence against this Act, or any which 
 may hereafter be passed concerning quarantine, or for any breach or 
 disobedience of any order made by his Majesty by the advice of his 
 
 (c) This Act specifies no punishment for under the 7 & 8 Geo. 4, c. 28, ss. 8, 9; 
 principals : they are, therefore, punishable 1 Vict. c. 90, s. 5. 
 
 (cc) See 29 & 30 Vict. c. 90, s. 52, post.
 
 chap, ix.] Of Neglecting Quarantine. 271 
 
 privy council, concerning quarantine, and the prevention of infection, 
 notified or published as aforesaid, or of any order or orders made by 
 two or more of the privy council, the answers of the commander, 
 master, or other person having charge of any vessel, to any ques- 
 tion or interrogatories put to him by virtue and in pursuance of 
 the Act, or of any Act which may hereafter be passed concerning 
 quarantine, or of any such order or orders as aforesaid, shall be re- 
 ceived as evidence so far as the same relate to the place from which 
 such vessel came, or to the place or places at which she touched 
 in the course of her voyage ; and also that where any vessel shall 
 have been directed to perform quarantine by the superintendent of 
 quarantine, or his assistant, or, where there is no superintendent or 
 assistant, by the principal officer of the customs at any port or 
 place, or other officer of the customs authorized to act in that be- 
 half ; the having been so directed to perform quarantine shall be 
 given and received as evidence that such vessel was liable to quaran- 
 tine, unless satisfactory proof be produced by the defendant to show 
 that the vessel did not come from, or touch at, any such place or 
 places as is or are stated in the said answers, or that such vessel, 
 although directed to perform quarantine, was not liable to the per- 
 formance thereof. And it further enacts, that where any vessel shall 
 in fact have been put under quarantine by the superintendent, &c, 
 and shall actually be performing the same, such vessel shall, in any 
 prosecution, &c, for any offence against this act, or any other act 
 hereafter passed concerning quarantine, or against any orders of 
 council as aforesaid, be deemed liable to quarantine, without proving 
 in what manner or from what circumstances such vessel became 
 liable to the performance thereof. 
 
 By the 29 & 30 Vict. c. 90, s. 52, it is enacted that every vessel 
 having on board any person affected with a dangerous or infectious 
 disorder shall be deemed to be within the provisions of the 6 Geo. 4, 
 c. 78, although such vessel has not commenced her voyage, or has 
 come from or is bound for some place in the United Kingdom ; and the 
 Lords and others of Her Majesty's Most Honourable Privy Council, or 
 any three or more of them (The Lord President of the Council, or one 
 of Her Majesty's principal Secretaries of State being one) may, by order 
 or orders to be by them from time to time made, make such rules, orders, 
 and regulations as to them shall seem fit, and every such order shall 
 be certified under the hand of the Clerk in Ordinary of Her Majesty's 
 Privy Council, and shall be published in the London Gazette, and such 
 publication shall be conclusive evidence of such order to all intents 
 and purposes, and such orders shall be binding and be carried into 
 effect as soon as the same shall have been so published, or at such 
 other time as shall be fixed by such orders, with a view to the treat- 
 ment of persons affected with cholera and epidemic, endemic, and 
 contagious disease, and preventing the spread of cholera and such 
 other diseases as well on the seas, rivers, and waters of the United 
 Kingdom, and on the high seas within three miles of the coasts 
 thereof, as on land, and to declare and determine by what nuisance 
 authority, or authorities, such orders, rules, and regulations, shall be 
 enforced and executed ; and any expenses incurred by such nuisance 
 authority, or authorities, shall be deemed to be expenses incurred
 
 272 Of Spreading Contagious Disorders. [book ii. 
 
 by it, or them, in carrying into effect the Nuisances Removal 
 Act. (d) 
 
 By the 35 & 36 Vict. c. 79, s. 52, (e) it is enacted that any person 
 wilfully neglecting or refusing to obey or carry out, or obstructing 
 the execution of any rule, order, or regulation made by the Local 
 Government Board under sect. 52 of the Sanitary Act (1866), shall be 
 guilty of an offence punishable on summary conviction before two 
 justices, and be liable to a penalty not exceeding £50. These provi- 
 sions are applied to the metropolis, by the 37 & 38 Vict. c. 89, s. 52. 
 
 Sec. II. 
 
 Of Spreading Contagious Disorders, and of Injury to the 
 Public Health. (/) 
 
 With the same regard to the public health, upon which the statutes 
 relating to quarantine have proceeded, the Legislature appears to have 
 acted in former times, in making persons guilty of felony who, being 
 infected with the plague, went abroad and into company, with infec- 
 tious sores upon them, after being commanded by the magistrates to 
 stay at home, (g) The statute which contained this enactment, after 
 being continued for some time, is now expired : but Lord Hale puts 
 the question, whether if a person infected with the plague should go 
 abroad vrith intent to infect another, and another be thereby infected 
 and die, it would not be murder by the common law. (h) And he 
 seems to consider it as clear, that though where no such intent ap- 
 pears it cannot be murder, yet, if by the conversation of such a person 
 another should be infected, it would be a great misdemeanor, (h) 
 
 In a case relating to the small-pox, it was held that the ex- 
 posing in the public highway, with a full knowledge of the fact, 
 a person infected with a contagious disorder is a common nui- 
 sance, and as such the subject of an indictment. The defendant 
 was indicted for carrying her child, while infected with the small- 
 pox, along a public highway, in which persons were passing, and 
 near to the habitations of the King's subjects ; and having suffered 
 judgment to go by default, it was moved, in arrest of judgment, 
 that it was consistent with the indictment that the child might 
 
 (d) This enactment is now repealed except Act, 1875 (38 & 39 Vict. c. 55). This Act 
 so far as relates to the metropolis or to Scot- does not extend (save as by the Act is ex- 
 land or Ireland, and the following provision pressly provided) to the metropolis. By 
 enacted instead, ' Description of vessels s. 341 the powers of the Act are cumulative, 
 within p-ovisions of 6 Geo. 4, c. 78,' every As to the duty of notifying infectious dis- 
 vessel having on board any person affected orders to local authorities, see 52 & 53 Vict, 
 with a dangerous or infectious disorder shall c. 72. Offences against this Act are, how- 
 be deemed to be within the provisions of the ever, punishable summarily (s. 3), as are 
 6 Geo. 4, c. 78, although such vessel has not also offences against The Prevention of 
 commenced her voyage, or has come from or Infectious Diseases Act, 1890, 53 & 54 Vict, 
 is bound for some place in the United King- c. 34 (see sec. 18). As to London, see 54 
 dom (38 & 39 Vict. c. 55, sched. 5, part 3). & 55 Vict. c. 76. 
 
 (e) This enactment is now repealed except (q) 2 (vnlgo 1) Jac. 1, c. 31, s. 7. See 
 
 so far as it relates to the metropolis (S8 & 39 37 & 38 Vict. c. 35. 1 Hale, 432, 695. 
 
 Vict. c. 55, sched- 5). 3 Inst. 90. 
 
 (/) The Acts relating to the public (h) 1 Hale, 432. 
 
 health are consolidated by the Public Health
 
 chap, ix.] Of Spreading Contagious Disorders. 273 
 
 have caught the disease, and that it was not shown that the act was 
 unlawful, as the mother might have carried it through the street, in 
 order to procure medical advice ; and that the indictment ought to 
 have alleged, that there was some sore upon the child at the time 
 when it was so carried. It was also urged, that the only offences 
 against the public health of which Hawkins speaks are spreading the 
 plague and neglecting quarantine ; (i) and that it appeared that Lord 
 Hardwicke thought the building of a house for the reception of 
 patients inoculated with the small-pox was not a public nuisance, 
 and mentioned that upon an indictment of that kind there had been 
 an acquittal, (j) But Lord Ellenborough, C. J., said, that if there 
 had been any such necessity as was supposed for the conduct of the de- 
 fendant, it might have been given in evidence as matter of defence : 
 but there was no such evidence : and as the indictment alleged that 
 the act was done unlawfully and injuriously, it precluded the presump- 
 tion that there was any such necessity. Le Blanc, J., in passing sen- 
 tence, observed, that although the Court had not found upon its 
 records any prosecution for this specific offence, yet there could be no 
 doubt in point of law, that if any one unlawfully, injuriously, and with 
 full knowledge of the fact, exposes in a public highway a person infected 
 with a contagious disorder, it is a common nuisance to all the subjects 
 and indictable as such. That the Court did not pronounce that every 
 person who inoculated for this disease was guilty of an offence, pro- 
 vided it was done in a proper manner, and the patient was kept from 
 the society of others, so as not to endanger a communication of the 
 disease. But no person, having a disorder of this description upon 
 him, ought to be publicly exposed, to the endangering the health and 
 lives of the rest of the subjects, (k) 
 
 In a subsequent case, where the indictment was against an apothe- 
 cary for unlawfully and injuriously inoculating children with the 
 small-pox, and while they were sick of it, unlawfully and injuriously 
 causing them to be carried along the public street, it was moved in 
 arrest of judgment, that this was not any offence ; that the case dif- 
 fered materially from that of B. v. Vantandillo, as it appeared that 
 the defendant was by profession a person qualified to inoculate with 
 this disease, if it weie lawful for any person to inoculate with it. 
 That as to its being alleged that the defendant caused the children 
 to be carried along the street, it was no more than this, that he 
 directed the patients to attend him for advice instead of visiting 
 them, or that he prescribed what he might deem essential for their 
 recovery, air and exercise. And it was observed that in R. v. Sut- 
 ton, (I) which was an indictment for keeping an inoculating-house, 
 and therefore much more likely to spread infection than what had 
 been done here, the Court said that the defendant might demur. 
 But Lord Ellenborough, C. J., said that the indictment laid the act to 
 be done unlawfully and injuriously ; and that in order to support 
 this statement it must be shown, that what was done was, in the 
 
 (i) 1 Hawk. P. C. cc. 52, 53. ing house near the church in a town ; and 
 
 (j) Anon. 3 Atk. 750. In 2 Chitt. Crim. the Cro. Circ. A. 365, is referred to. 
 
 Law, 656, there is an indictment against an (k) R. v. Vantandillo, 4 M. & S. 73. 
 
 apothecary for keeping a common inoculat- (/) 4 Burr. 2116. 
 
 VOL. I. — 1 8
 
 274 Of Spreading Contagious Disorders. [book ii. 
 
 manner of doing it, incautious, and likely to affect the health of 
 others, (m) 
 
 By an Act (n) to consolidate and amend the laws relating to vac- 
 cination, it is made a misdemeanor to wilfully sign a false certificate 
 or duplicate of vaccination under that Act, and by section 32 it is en- 
 acted that any person who shall after the passing of this Act produce, 
 or attempt to produce, in any person by inoculation, with variolous 
 matter, or by wilful exposure to variolous matter, or to any matter, 
 article, or thing impregnated with variolous matter, or wilfully by 
 any other means whatsoever produce the disease of small-pox in any 
 person, shall be guilty of an offence, and shall be liable to be pro- 
 ceeded against summarily, and upon conviction to be imprisoned for 
 any term not exceeding one month. 
 
 The public health may be injured by selling unwholesome food ; l 
 and it is an indictable offence to mix unwholesome ingredients 
 in anything made and supplied for the food of man. And if a 
 master knows that his servant puts into bread what the law has 
 prohibited, and the servant from the quantity he puts in makes the 
 bread unwholesome, the master is answerable criminally, for he 
 should have taken care that more than is wholesome was not in- 
 serted, (o) The indictment was against the contract baker for a 
 military asylum, for delivering for the use of the children belong- 
 ing to the asylum, divers loaves containing noxious materials, which 
 he knew. The evidence was that they contained crude lumps of 
 alum, and that alum was an unwholesome ingredient, and that 
 the defendant's foreman made the loaves ; but the jury found that the 
 defendant knew he used alum. Upon a motion for a new trial the 
 Court thought, that if the master suffered the use of a prohibited 
 article, it was his duty to take care that it was not used to a 
 noxious extent, and that he was answerable if it was. A rule for 
 arresting the judgment was then moved for, on the ground that the 
 indictment did not specify what the noxious ingredients were, or state 
 that the loaves were delivered to be eaten by the children : but the 
 Court held the former not necessary, because the ingredients were in 
 the defendant's knowledge ; and the allegation that the loaves were 
 delivered for the use and supply of the children, must mean that they 
 were delivered for their eating ; and the rule was refused, (j?) 
 
 ' Victuallers, butchers, and other common dealers in victuals, are 
 
 (m) P. v. Burnett, 4" M. & S. 272. See (p) R. v. Dixon, 3 M. &. S. 11. See 
 
 the Public Health Act, 1875, ss. 1, 2, 3, Att.-Gen. v. Siddon, 1 Tynv. 41, as to the 
 
 et seq. liability of a master for the acts of his 
 
 (n) 30 & 31 Vict. c. 84, s. 30. servant. As a general rule a master cannot 
 
 (o) See 38 & 39 Vict. c. 63, entitled 'an be held criminally responsible for the acts or 
 
 Act to repeal the Adulteration of Food Acts, defaults of his servant, see Chisholm v. 
 
 and to make better provision for the sale of Doulton, 22 Q. B. D. 736. Att.-Gen. v. 
 
 food and drugs in a pure state.' See 35 & Piddell, 2 Tyrw. 523, as to the liability of a 
 
 36 Vict. c. 74, and see the Public Health husband for the acts of his wife. Lyons v. 
 
 Act, 1875, ss. 116, 117, 118, 119. Martin, 8 A. & E. 512. 
 
 American Note. 
 
 1 AVhere the defendant had contracted to supply was not wholesome. Stein v. S., 37' 
 supply a city with wholesome water he was Ala. 123. 
 held indictable for a nuisance when the
 
 chap, ix.] Of Injury to the Public Health. 275 
 
 not merely in the same situation that common dealers in other com- 
 modities are, and liable under the same circumstances that they are, 
 so that if an order be sent to them to be executed they are presumed 
 to undertake to supply a good and merchantable article ; but they are 
 also liable to punishment for selling corrupt victuals by virtue of an 
 ancient statute, (c[) certainly if they do so knowingly, and probably 
 if they do not.' (r) 
 
 If a person publicly exposes or causes to be exposed for sale in a 
 market meat unfit for human food as and for meat that is fit for 
 human food, knowing it not to be so, he is indictable at common 
 law. (s) But a person is not indictable at common law for sending 
 meat unfit for human food to a salesman in a market, unless he in- 
 tend it to be sold for human food, (t) In a recent case the prisoner 
 was indicted (u) under sec. 47 of the Public Health Act (London), 
 1891 (v), which provides for the summary punishment of persons in 
 whose possession articles intended for the food of man, but unsound, 
 unwholesome, or unfit for the food of man, are found. It was proved 
 that the prisoner was a wholesale fruit dealer, and received for sale a 
 large consignment of foreign nuts, a large proportion of which proved 
 to be bad. He, without examining their condition, sold a quantity of 
 them to retail dealers, who were, however, warned by him to examine 
 the nuts, and destroy such (if any) as were bad, before offering them 
 for sale to the public. It was held that he could not be convicted, 
 since it was not shown that he intended to sell the bad nuts for human 
 food, (w) 
 
 It is an indictable offence at common law to bring a horse infected 
 with the glanders into a public place to the danger of infecting the 
 people there : and an indictment, which alleges that the defendant 
 knew that a horse was infected with a contagious and infectious disease 
 called the glanders, and that he brought it into a public place among 
 divers subjects of the Queen to the great danger of infecting the said 
 subjects with the said disease, is sufficient, after verdict, without 
 alleging that the defendant knew that the disease was communicable 
 to man. (x) 
 
 Where an indictment alleged that the defendant mixed a lame 
 quantity of cantharides with rum, and gave the mixture to a woman 
 with intent that she should drink it, and with intent thereby to in- 
 jure her health, and that the woman, not knowing the cantharides to 
 have been mixed with the rum, drank the mixture, whereby she 
 became ill for a long space of time, and the facts corresponded with 
 
 (q) 51 H. 3, st. 6, repealed by the 7 & 8 (u) The prisoner claimed to he tried by a 
 
 Vict. c. 24, which also repeals an Act for jury under the provisions of 42 & 43 Vic. 
 
 'the punishment of a butcher selling un- c. 49, s. 17, the punishment being six months 
 
 wholesome flesh.' Ruff heads' St. p. 187, imprisonment. See ante, p. 206. 
 
 vol. 1, either of H. 3, E. 1, or E. 2. (v) 54 & 55 Vic. c. 76. The judgments 
 
 (r) Per Parke, B. , delivering the judg- turned chief!)' on the language of the sec- 
 
 ment of the Court in Burnhy v Bollett, 16 tion, which is not here set out, as it relates 
 
 M. & W. 644, and see 4 Inst. 261. to summary proceedings. 
 
 (s) R. v. Stevenson, 3 F. & F. 106. K. (w) R. v. Dennis, 10 Times L. R. 498 
 v. Jarvis, 3 F. & F. 108. Shillito v. Thomp- (per Hawkins, Cave, Grantham, Charles, 
 son, 1 Q. B. D. 12. As to summary convic- Vaughan-Williams, Lawrance, Wiiglit, Coi- 
 tion for this offence, see 26 & 27 Vict. c. 117, lins, Bruce, and Kennedy, JJ. ; Mathew, J., 
 s. 2 ; 38 & 39 Vict. c. 55, ss. 116, 117. dissenting). 
 
 (t) R. v. Crawley, 3 F. & F. 109. (x) R. v. Henson, Dears. C. C. 24.
 
 276 Of Injury to the Public Health. [book ii. 
 
 the statements in the indictment, Williams, J., after consulting Cress- 
 well, J., held that the offence charged was not a misdemeanor at 
 common law. (y) 
 
 It is an indictable offence to convey the refuse of gas into a 
 great public river, and thereby to render the water corrupt, insalu- 
 brious, and unfit for the use of man, and the directors of a gas com- 
 pany are responsible for the acts done by their superintendent and 
 engineer under a general authority to manage the works, though they 
 are personally ignorant of the plan adopted, and though such plan be 
 a departure from the original and understood method, which the 
 directors had no reason to suppose was discontinued : for if persons 
 for their own advantage employ servants to conduct works, they are 
 answerable for what is done by those servants, (z) 
 
 (i/) E. v. Hanson, 2 C. & K. 912; 4 Cox, his wife with gonorrhoea, see R. v. Clarence, 
 
 C. C. 238. See the 24 & 25 Vict. c. 100, 22 Q. B. D. 23. 
 
 ss. 23, 24, which clearly provide for such (2) R. v. Medley, 6 C. & P. 292. Lord 
 
 cases as the preceding, and R. v. Walkden, Denman, C. J. 
 1 Cox, C. C. 282. As to husband infecting
 
 CHAPTER THE TENTH. 
 
 OF OFFENCES AGAINST THE REVENUE LAWS RELATING TO THE 
 CUSTOMS OR EXCISE. 
 
 Amongst the offences against the revenue laws, that of smuggling 
 is one of the principal. It consists in bringing on shore, or in carry- 
 ing from the shore, goods, wares, or merchandise, for which the duty 
 has not been paid, or goods of which the importation or exportation 
 is prohibited : an offence productive of various mischiefs to society, (a) 
 In order to prevent the commission of offences of this kind, many 
 statutes were passed from time to time, which, in addition to the 
 proceedings at common law for assaulting and obstructing revenue 
 officers when acting in the execution of their duties, (b) gave to those 
 officers extraordinary powers and protections, and punished persons 
 endeavouring to resist or evade the laws relating to the customs and 
 excise. The 16 and 17 Vict. c. 107, which consolidates the laws 
 relating to the customs, makes various enactments relating to the 
 forfeiture of vessels engaged in illegal traffic, and of uncustomed 
 goods, which do not come within the scope of this treatise. But 
 some of the enactments relating to the right to proceed to extremi- 
 ties, when necessary, for the purpose of seizing vessels liable to 
 seizure, and the right to search for and seize goods liable to for- 
 feiture, may properly be here mentioned. And the offence of making 
 signals to smuggling vessels at sea, and the several offences declared 
 to be felonies by this statute, require to be particularly noticed. 
 
 By the 39 & 40 Vict. c. 36, s. 168, ' If any person shall in any matter 
 relating to the Customs or under the control or management of the Com- 
 missioners of Customs, make or subscribe, or cause to be made or sub- 
 scribed, any false declaration, or make or sign any declaration, certificate, 
 or other instrument required to be verified by signature only, the same 
 being false in any particular, or if any person shall make or sign any 
 declaration made for the consideration of the Commissioners of Customs 
 on any application presented to them, the same being untrue in any 
 particular, or if any person required by this or any other Act relating 
 to the Customs to answer questions put to him by the officers of 
 Customs shall not truly answer such questions, or if any person shall 
 
 (a) 1 Hawk. P. C. c. 48, s. 1. 4 Blac. 4 Wentw. 385, et seq. 2 Chitt. Crim. Law, 
 Com. 155. Bac. Abr. Smuggling. 127, ct scq. And see Brady's ease, 1 Bos. & 
 
 (b) See many precedents for misde- Pul. 188, where it was admitted that the 
 meanors at common law, in assaulting and offence charged in the indictment was an 
 obstructing officers of excise and customs, offence indictable at common law. 
 
 acting in the due execution of their offices;
 
 278 Of Offences against the Revenue Laws. [book ii. 
 
 counterfeit, falsify, or wilfully use when counterfeited or falsified, 
 any document required by this or any Act relating to the Customs, or 
 by or under the directions of the Commissioners of Customs, or any 
 instrument used in the transaction of any business or matter relating 
 to the Customs, or shall alter any document or instrument after the 
 same has been officially issued ; or counterfeit the seal, signature, 
 initials, or other mark of or used by any officer of the Customs for 
 the verification of any such document or instrument, or for the secu- 
 rity of goods, or any other purpose in the conduct of business relating 
 to the Customs, or under the control or management of the Commis- 
 sioners of Customs or their officers, every person so offending shall 
 for every such offence forfeit the penalty of one hundred pounds.' 
 
 By sec. 181, ' If any ship or boat liable to seizure or examination 
 under the Customs Act shall not bring to when required so to do, the 
 master of such ship or boat shall forfeit the sum of £20, and on being 
 chased by any vessel or boat in Her Majesty's navy having the proper 
 pendant and ensign of Her Majesty's ships hoisted, or by any vessel or 
 boat duly employed for the prevention of smuggling, having a proper 
 pendant and ensign hoisted, it shall be lawful for the captain, master, 
 or other person having the charge or command of such vessel or boat 
 in Her Majesty's navy, or employed as aforesaid (first causing a gun 
 to be fired as a signal), to fire at or into such ship or boat, and such 
 captain, master, or other person acting in his aid or by his direction, 
 shall be and is hereby indemnified and discharged from any indict- 
 ment, penalty, action, or other proceeding for so doing.' 
 
 Sec. 182. ' Any officer of Customs, or other person duly employed 
 for the prevention of smuggling may go on board any ship or boat 
 which shall be within the limits of any port of the United Kingdom, 
 or the Channel Islands, and rummage and search the cabin and all 
 other parts of such ship or boat for prohibited or uncustomed goods, 
 and remain on board such ship or boat so long as she shall continue 
 within the limits of such port.' 
 
 Sec. 184. 'Any officer of Customs or other persons duly employed 
 for the prevention of smuggling may search any person on board any 
 ship or boat within the limits of any port in the United Kingdom or 
 the Channel Islands, or any person who shall have landed from any 
 ship or boat, provided such officer or other person duly employed as 
 aforesaid shall have good reason to suppose that such person is car- 
 rying or has any uncustomed or prohibited goods about his person; 
 and if any person shall rescue, destroy, or attempt to destroy any 
 goods to prevent seizure, or obstruct any such officer or other person 
 duly employed as aforesaid in going, remaining, or returning from on 
 board, or in searching such ship, or boat, or person, or otherwise in the 
 execution of his duty, every such person shall forfeit a sum not ex- 
 ceeding one hundred pounds.' 
 
 Sec. 185. ' Before any person shall be searched he may require to 
 be taken with all reasonable despatch before a justice, or before the 
 collector or other superior officer of Customs, who shall, if he see no 
 reasonable cause for search, discharge such person ; but if otherwise, 
 direct that he be searched, and if a female she shall not be searched 
 by any other than a female ; but if any officer shall without reason- 
 able ground cause any person to be searched, such officer shall forfeit
 
 €HAP. x.] 0/ Offences (against the Revenue Laws. 279 
 
 and pay a sum not exceeding ten pounds. If any passenger or other 
 person on board any such ship, or boat, or who may have landed from 
 any such ship, or boat, shall, upon being questioned by any officer of 
 Customs or other person duly employed for the prevention of smug- 
 gling, whether he has any foreign goods upon his person or in his 
 possession or in his baggage, deny the same, and any such goods shall 
 after such denial be discovered to be or to have been upon his person 
 or in his possession or in his baggage, such goods shall be forfeited, 
 and such person shall forfeit one hundred pounds, or treble the value 
 of such goods, at the election of the Commissioners of Customs.' 
 
 Sec. 186. ' Every person who shall import, or bring, or be con- 
 cerned in importing or bringing into the United Kingdom, any 
 prohibited goods, or any goods the importation of which is re- 
 stricted, contrary to such prohibition or restriction, whether the 
 same be unshipped or not ; or shall unship, or assist, or be other- 
 wise concerned in the unshipping of any goods which are prohibited, 
 or of any goods which are restricted and imported contrary to such 
 restriction, or of any goods liable to duty, the duties for which 
 have not been paid or secured ; or shall deliver, remove, or withdraw 
 from any ship, quay, wharf, or other place previous to the examination 
 thereof by the proper officer of Customs, unless under the care or 
 authority of such officer, any goods imported into the United 
 Kingdom, or any goods entered to be warehoused after the landing 
 thereof, so that no sufficient account is taken thereof bv the proper 
 officer, or so that the same are not duly warehoused ; or shall carry 
 into the warehouse any goods entered to be warehoused or to be re- 
 warehoused, except with the authority or under the care of the proper 
 officer of Customs, and in such manner, by such person, within such 
 time, and by such roads or ways as such officer shall direct ; or shall 
 assist, or be otherwise concerned in the illegal removal or withdrawal 
 of any goods from any warehouse or place of security in which they 
 shall have been deposited ; or shall knowingly harbour, keep, or con- 
 ceal, or knowingly permit or suffer, or cause or procure to be harboured, 
 kept, or concealed, any prohibited, restricted, or uncustomed goods, or 
 any goods which shall have been illegally removed without payment 
 of duty from any warehouse or place of security in which they may 
 have been deposited ; or shall knowingly acquire possession of any 
 such goods ; or shall be in any way knowingly concerned in carrying, 
 removing, depositing, concealing, or in any manner dealing with any 
 such goods with intent to defraud Her Majesty of any duties due 
 thereon, or to evade any prohibition or restriction of or applicable to 
 such goods ; or shall be in any way knowingly concerned in any 
 fraudulent evasion or attempt at evasion of any duties of Customs, or 
 of the law and restrictions of the Customs relating to the importation, 
 unshipping, landing, and delivery of goods, or otherwise contrary to 
 the Customs Acts ; shall for each such offence forfeit either treble 
 the value of the goods, including the duty payable thereon, or one 
 hundred pounds, at the election of the Commissioners of Customs ; 
 and the offender may either be detained or proceeded against by 
 summons.' 
 
 Sec. 187. 'Every person who shall rescue, or endeavour to rescue, 
 any goods seized by any officer of Customs or other person author-
 
 280 Of Of/'enccs against the Revenue Laws. [book ii. 
 
 ised to seize the same, or before or after the seizure shall stave, 
 break, or destroy, or endeavour to stave, break, or destroy any goods, 
 to prevent the seizure or the securing thereof by such officer or other 
 person ; or shall rescue any person apprehended for any offence pun- 
 ishable by fine or imprisonment under the Customs Acts, or prevent 
 or attempt to prevent his apprehension ; or shall assault or obstruct 
 any officer of the army, navy, marines, coastguard, customs, or other 
 person duly employed for the prevention of smuggling, in the execu- 
 tion of his duty, or in the seizing of any goods liable to forfeiture 
 under the Customs Acts, or shall aid, abet, or assist in committing 
 any of the foregoing offences, shall for each such offence forfeit a 
 penalty of one hundred pounds.' 
 
 By the Customs Act, 1879 (41 & 42 Vict. c. 21, s. 10), 'All per- 
 sons to the number of three or more who shall assemble for the pur- 
 pose of unshipping, landing, running, carrying, concealing, or having 
 so assembled shall unship, land, run, carry, convey, or conceal any 
 spirits, tobacco, or any prohibited, restricted, or uncustomed goods, 
 shall each forfeit a penalty not exceeding 500/. nor less than 100/.' 
 
 By 39 & 40 Vict. c. 36, s. 189, 'every person who shall by any means 
 procure or hire, or shall depute or authorise any other person to pro- 
 cure or hire, any person or persons to assemble for the purpose of 
 being concerned in the landing or unshipping, or carrying, convey- 
 ing, or concealing any goods which are prohibited to be imported, or 
 the duties for which have not been paid or secured, shall be impris- 
 oned for any term not exceeding twelve months, and if any person 
 engaged in the commission of any of the above offences be armed 
 with fire-arms or other offensive weapons, or whether so armed or not 
 be disguised in any way, or be so armed or disguised, shall be found 
 with any goods liable to forfeiture under the Customs Acts, within 
 five miles of the seacoast or of any tidal river, shall be imprisoned 
 with or without hard labour for any term not exceeding three 
 years.' (c) 
 
 Sec. 190. ' No person shall after sunset or before sunrise, between 
 the twenty-first day of September, and the first day of April, or 
 after the hour of eight in the evening, and before the hour of 
 six in the morning, at any other time of the year, make, aid, or 
 assist in making, any signal in or on board or from any ship or 
 boat, or on or from any part of the coast or shore of the United 
 Kingdom, or within six miles of any part of such coast or shore, 
 for the purpose of giving notice to any person on board any smug- 
 gling ship or boat, whether any person so on board of such ship or 
 boat be or not within distance to notice any such signal ; and if 
 any person, contrary to the Customs Acts, shall make or cause to be 
 made, or aid or assist in making any such signal, he shall be guilty of 
 a misdemeanor, and may be stopped, arrested, detained, and conveyed 
 before any justice, who, if he see cause, shall commit the offender to 
 the next county gaol, there to remain until delivered by due course of 
 
 (c) The intention of these two sections but if persons assemble armed, or procure 
 
 probably is that three or more persons as- others to assemble armed, they are to be 
 
 sembling are to be liable to a penalty, and liable to three years' imprisonment. The 
 
 persons procuring them to assemble are to sections are difficult to construe. See 
 
 be liable to twelve months imprisonment ; Stephen's Digest, p. 52.
 
 chap, x.] Of Offences against the Revenue Laws. 281 
 
 law ; and it shall not be necessary to prove on any indictment or 
 information in such case that any ship or boat was actually on the coast ; 
 and the offender being duly convicted, shall, by order of the Court 
 before whom he shall be convicted, either forfeit the penalty of one 
 hundred pounds, or at the discretion of such Court, be committed to a 
 gaol or house of correction, there to be kept to hard labour for any 
 term not exceeding one year.' (d) 
 
 Where an indictment upon the 6 Geo. 4, c. 108, s. 52, which 
 was similar to sec. 190 of the present Act, stated that the defend- 
 ants between sunset on the 8th and sunrise on the 9th of March, 
 that is to say, on the morning of the said 9th of March about 
 three o'clock, did make certain lights, &c. ; it was proved that the 
 lights were made on the morning of the 9th, and it was objected 
 that the indictment did not state the offence to have been com- 
 mitted between the 21st of September and the 1st of April, and 
 that the allegation that the offence was committed on the 9th of 
 March was not sufficient, because the prosecutor was not bound to 
 the day laid, but might prove the offence to have taken place on any 
 other day ; that the time was of the essence of the offence, and there- 
 fore it ought to have formed a distinct and substantive averment in 
 the words of the Act ; but it was held that the day having been 
 proved as laid, the objection could only properly be made in arrest of 
 judgment, and even then it was no valid objection ; for judicial notice 
 must be taken that the day averred in the indictment is, in fact, 
 within the period mentioned in the statute, and therefore the indict- 
 ment was good, (c) 
 
 Sec. 191. ' If any person be charged with having made or caused to 
 be made, or for aiding or assisting in making, any such signal as afore- 
 said, the burden of proof that such signal so charged as having been 
 made with intent and for the purpose of giving such notice as afore- 
 said was not made with such intent and for such purpose, shall be 
 upon the defendant against whom such charge is made.' 
 
 Sec. 192. 'Any person whatsoever may prevent any signal being 
 made as aforesaid, and may go upon any lands for that purpose, with- 
 out being liable to any indictment, suit, or action for the same.' 
 
 Sec. 193. ' If any person shall maliciously shoot at any vessel or 
 boat belonging to Her Majesty's navy, or in the service of the rev- 
 enue, or shall maliciously shoot at, maim, or wound any officer of the 
 army, navy, marines, or coastguard, being duly employed in the pre- 
 vention of smuggling, and on full pay, or any officer of customs or 
 excise, or any person acting in his aid or assistance, or duly employed 
 for the prevention of smuggling, in the execution of his office or duty, 
 
 (d) Two persons were separately eon- it was intended that every person offending 
 victed of unshipping goods against the 3 & should he punished, or merely that every 
 4 Will. 4, c. 53, s. 44, by which ' every offence should be punished. The question 
 person concerned in the unshipping of is whether an offence that is committed by 
 goods, the duties of which have not been several persons is to be visited by one pen- 
 paid, shall forfeit either the treble value alty, or each person is to be visited by a 
 thereof, or be liable to a penalty of £100, penalty.' 
 
 and it was held that each was liable to the (e) R. v. Brown, Moo. & M. 163, Little- 
 penalties imposed by the clause. R. v. Dean, dale, J., after consulting Gaselee, J., see 
 12 M. & W. 39 ; and per Alderson, B., Martin's case, ante, p. 241. 
 ' "We must look at the statute to see whether
 
 282 Of Offences against the Revenue Laws. [book ii. 
 
 every person so offending, and every person aiding, abetting, or assist- 
 ing therein, shall, upon conviction, be adjudged guilty of felony, and 
 shall be liable, at the discretion of the Court, to penal servitude for 
 any term not less than five years, (/) or to be imprisoned for any 
 term not exceeding three years.' 
 
 Sec. 198. 'Where any person, being part of the crew of any ship in 
 Her Majesty's employment or service, shall have been detained under 
 the Customs Acts, such person, upon notice thereof to the command- 
 ing officer of the ship, shall be placed in security by such commanding 
 officer on board such ship or vessel, until required to be brought 
 before a justice to be dealt with according to law, for which purpose 
 such commanding officer shall deliver him to the detaining officer.' 
 
 Sec. 199. 'If any person liable to be detained under the Customs 
 Acts shall not be detained at the time of committing the offence, or 
 being detained, shall escape, he may afterwards be detained at any 
 place in the United Kingdom within three years from the time such 
 offence was committed, and if detained, may be taken before any 
 justice to be dealt with as if he had been detained at the time of 
 committing such offence, or if not so detained, may be proceeded 
 against by information and summons.' 
 
 Sec. 200. ' If any person, not being an officer of the navy, customs, 
 or excise, shall intermeddle with or take up any spirits being in casks 
 of less content than twenty gallons found floating upon or sunk in the 
 sea, such spirits shall be forfeited, together with any vessel or boat in 
 which they may be found ; but if any person shall give information to 
 any such officer so that seizure of sucli spirits may be made, he shall 
 be entitled to such reward as the Commissioners of Customs may 
 direct.' 
 
 Sec. 201. ' If any person shall offer for sale any goods under pretence 
 that the same are prohibited, or have been unshipped and run ashore 
 without payment of duties, all such goods (although not liable to any 
 duties or prohibited) shall be forfeited, and every person so offering 
 the same for sale shall forfeit treble the value of such goods.' 
 
 Sec. 202. ' All ships, boats, carriages, or other conveyances, together 
 with all horses and other animals and things made use of in the impor- 
 tation, landing, removal, or conveyance of any uncustomed, prohibited, 
 restricted, or other goods liable to forfeiture under the Customs Acts, 
 shall be forfeited, and all ships, boats, goods, carriages, or other con- 
 veyances, together with all horses and other animals and things liable 
 to forfeiture, and all persons liable to be detained for any offence 
 under the Customs Acts, or any other Act whereby officers of customs 
 are authorized to seize or detain persons, goods, or other things, shall 
 or may be seized or detained in any place either upon land or 
 water by any of the following persons, being duly employed for the 
 prevention of smuggling ; that is to say, any officer of Her Majesty's 
 army, navy, marines, coastguard, customs, or excise, or by any person 
 having authority from the Commissioners of Customs or Inland 
 Revenue to seize, or by any constable or police officer of any county, 
 city, or borough in the United Kingdom so employed with the sanc- 
 tion of the magistrates having jurisdiction therein, or under or by 
 virtue of any Act in relation thereto, and all ships, boats, goods, car- 
 
 (/) Now 3 years.
 
 chap, x.] Of Offences against the Revenue Laws. 283 
 
 riages, or other conveyances, together with all horses and other 
 animals and things so seized, shall forthwith be delivered into the 
 care of the collector or other proper officer of customs at the nearesl 
 custom-house; and the forfeiture of any ship, boat, carriage, animal, 
 or other things shall be deemed to include the tackle, apparel, and 
 furniture thereof, and the forfeiture of any goods shall be deemed to 
 include the package in which the same are found, and all the contents 
 thereof.' 
 
 Sec. 203. ' Any officer of customs, excise, coastguard, constabulary 
 police, or other person duly employed for the prevention of smuggling 
 may, upon reasonable suspicion, stop and examine any cart, waggon, 
 or other conveyance to ascertain whether any smuggled goods are 
 contained therein ; and if none shall be found, the officer or other 
 person shall not, on account of such stoppage and examination, be 
 liable to any prosecution or action at law on account thereof ; and any 
 person driving or conducting such cart, waggon, or other conveyance, 
 refusing to stop or allow any such examination when required in the 
 Queen's name, shall forfeit not less than twenty nor more than one 
 hundred pounds.' 
 
 Sec. 204. 'All writs of assistance issued from the Court of Ex- 
 chequer or other proper court, shall continue in force during the reign 
 for which they were granted, and for six months afterwards, and any 
 officer of customs, or person acting under the direction of the Com- 
 missioners of Customs, having such writ of assistance or any warrant 
 issued by a justice of the peace, may, in the daytime, enter into and 
 search (g) any house, shop, cellar, warehouse, room, or other place, 
 and in case of resistance break open doors, chests, trunks, and other 
 packages, and seize and bring away any uncustomed or prohibited 
 goods, and put and secure the same in the Queen's warehouse, and 
 may take with him any constable or police officer, who may act as 
 well without as within the limits of the place for which he shall 
 have been sworn or appointed.' 
 
 Sec. 205. ' If any officer of customs shall have reasonable cause to 
 suspect that any uncustomed or prohibited goods are harboured, kept, 
 or concealed in any house or other place either in the United King- 
 dom or the Channel Islands, and it shall be made to appear by infor- 
 mation on oath before any justice of the peace in the United Kingdom 
 or the Channel Islands, it shall be lawful for such justice, by special 
 warrant under his hand, to authorize such officer to enter and search 
 such house or other place, and to seize and carry away any such un- 
 customed or prohibited goods as may be found therein; and it shall 
 be lawful for such officer, and he is hereby authorized, in case of 
 resistance, to break open any door, and to force and remove any other 
 impediment or obstruction to such entry, search, or seizure as afore- 
 said ; and such officer may, if he see fit, avail himself of the service 
 of any constable or police officer to aid and assist in the execution of 
 such warrant, and any constable or other police officer is hereby 
 required when so called upon, to aid and assist accordingly.' 
 
 (g) The power to search was introduced s. 40, and where it was also doubted whether 
 
 in consequence of R. v. Watts, 1 B. & Ad. the ordinary writ of assistance was not too 
 
 166, where it was doubted whether that general, 
 power existed under the 6 Geo. 4, c. 108,
 
 284 Of Offences against the Revenue Laivs. [book ii. 
 
 Sec. 206. ' If any such goods liable to duties of customs, or 
 prohibited to be imported, or in any way restricted, shall be stopped 
 or taken by any police officer on suspicion that the same had been 
 feloniously stolen, he may carry the same to the police office to 
 which the offender if detained is taken, there to remain until, and in 
 order to be produced at the trial of such offender, and in such case 
 the officer is required to give notice in writing to the Commissioners 
 of Customs of such stoppage or detention, with the particulars of the 
 goods ; but immediately after such stoppage, if the offender be not 
 detained, or if detained immediately after the trial of such offender, 
 such officer shall convey to and deposit the goods in the nearest 
 customs warehouse, to be proceeded against according to law ; and if 
 any police officer so detaining any such goods shall neglect to convey 
 the same to such warehouse, or to give the notice hereinbefore pre- 
 scribed, he shall forfeit a sum not exceeding twenty pounds.' 
 
 Sec. 207. ' Whenever any seizure shall be made, unless in the pos- 
 session or in the presence of the offender, master, or owner, as for- 
 feited under the Customs Acts or under any Act by which customs 
 officers are empowered to make seizures, the seizing officer shall give 
 notice in writing of such seizure and of the grounds thereof to the 
 master or owner of the things seized, if known, either by delivering 
 the same to him personally or by letter addressed to him and trans- 
 mitted by post to or delivered at his last known place of abode or 
 business, if known ; and all seizures made under the Customs Acts, 
 or under any Act by which customs officers are empowered to make 
 seizures, shall be deemed and taken to be condemned, and may be 
 sold or otherwise disposed of in such manner as the Commissioners 
 of Customs may direct, unless the person from whom such seizure 
 shall have been made, or the master or owner thereof, or some person 
 authorized by him, shall, within one calendar month from the day of 
 seizure, give notice in writing, if in London, to the person seizing the 
 same, or to the secretary or solicitor for the customs, and if elsewhere, 
 to the person seizing the same, or to the collector or other chief officer 
 of customs at the nearest port, that he claims the things so seized 
 or intends to claim them, whereupon proceedings shall be taken for 
 the forfeiture or condemnation thereof either by information filed in 
 the Exchequer Division of the High. Court of Justice in England 
 on the Revenue side, or exhibited before any justice of the peace ; 
 but if any things so seized shall be of a perishable nature, or consist 
 of horses or other animals, the same may by direction of the Com- 
 missioners of Customs be sold, and the proceeds thereof retained to 
 abide the result of any claim that may legally be made in respect 
 thereof.' 
 
 Sec. 208. ' All seizures whatsoever which shall have been made and 
 condemned under the Customs Acts or any other Act by which seizures 
 are authorized to be made by officers of customs shall be disposed of 
 in such manner as the Commissioners of Customs may direct.' 
 
 Sec. 209. ' When any seizure shall have been made, or any fine or 
 penalty incurred or inflicted, or any person committed to prison for 
 any offence under the Customs Acts, the Commissioners of the 
 Treasury or Customs may direct the restoration of such seizure, 
 whether condemnation shall have taken place or not, or waive pro-
 
 chap, x.] Of Offences against the Revenue Laws. 285 
 
 ceedings, or mitigate, or remit such tine or penalty, or release from 
 confinement either before or after conviction such person on any 
 terms and conditions as they shall see fit.' 
 
 Sec. 229. ' Where any offence shall be committed in any place upon 
 the water not being within any county of the United Kingdom, or 
 where the officers have any doubt whether such place is within the 
 boundaries or limits of any such county, such offence shall for the 
 purposes of the Customs Acts be deemed and taken to be an offence 
 committed on the high seas; and for the purpose of giving jurisdic- 
 tion under such Acts, every offence shall be deemed to have been 
 committed, and every cause of complaint to have arisen, either in the 
 place in which the same actually was committed or arose, or in any 
 place on land where the offender or person complained against may 
 be or be brought.' 
 
 Sec. 237. ' When any verdict shall pass or conviction be had against 
 any person for any offence against the Customs Acts, and he shall 
 have been adjudged to pay a penalty exceeding one hundred pounds, 
 the presiding judge or justice may, if for a first offence, commit 
 the offender to prison for not less than six nor more than nine 
 months, and if for a subsequent offence, may order that the offender 
 shall, in lieu of payment of the penalty, be imprisoned in gaol, or 
 house of correction, with or without hard labour, for a period of not 
 less than six nor more than twelve months, and the governor or 
 keeper of such gaol or house of correction is hereby required to 
 receive any person committed under such order.' 
 
 Sec. 255. ' All indictments or suits for any offences or the recovery 
 of any penalties or forfeitures under the Customs Acts shall, except in 
 cases where the summary jurisdiction is given to justices, be preferred 
 or commenced in the name of Her Majesty's Attorney- General for 
 England or Ireland, or of the Lord Advocate of Scotland, or of some 
 officer of customs or inland revenue.' 
 
 Sec. 256. ' In any prosecution for recovery of any fine, penalty, or 
 forfeiture incurred under the Customs Acts, Her Majesty's Attorney- 
 General for England, Her Majesty's Attorney-General for Ireland, or 
 the Lord Advocate of Scotland, if satisfied that such fine, penalty, or 
 forfeiture was incurred without any intention of fraud, or that it may 
 be inexpedient to proceed in the said prosecution, may enter a nolle 
 prosequi or otherwise on such information.' 
 
 Sec. 257. 'All suits, indictments, or informations brought or ex- 
 hibited for any offence against the Customs Acts in any court or before 
 any justice, shall be brought or exhibited within three years next 
 after the date of the offence committed.' (h) 
 
 Sec. 258. 'Any indictment, prosecution, or information which may 
 be instituted or brought under the direction of the Commissioners 
 of Customs for offences against the Customs Acts shall and may be 
 inquired of, examined, tried, and determined in any county of England 
 when the offence is committed in England, and in any county in 
 Scotland when the offence is committed in Scotland, and in any county 
 in Ireland when the offence is committed in Ireland, in such manner 
 and form as if the offence had been committed in the said county 
 where the said indictment or information shall be tried.' 
 
 (h) See R. v. Thompson, 20 L. J. M. C. 13, 16 Q. B. 832.
 
 286 Of 0/fences against the Revenue Laws. [book. ii. 
 
 Sec. 259. ' If in any prosecution in respect of any goods seized for 
 non-payment of duties, or any other cause of forfeiture, or for the 
 recovering any penalty or penalties under the Customs Acts, any dis- 
 putes shall arise whether the duties of customs have been paid in 
 respect of such goods, or whether the same have been lawfully im- 
 ported or lawfully unshipped, or concerning the place from whence 
 such goods were brought, then and in every such case the proof thereof 
 shall be on the defendant in such prosecution, and where any such 
 proceedings are had in the Exchequer Division of the High Court 
 of Justice on the Eevenue side, the defendant shall be competent 
 and compellable to give evidence.' 
 
 Sec. 260. ' The averment that the Commissioners of Customs or 
 Inland Eevenue have directed or elected that any information or 
 proceeding under the Customs Acts shall be instituted, or that any 
 ship or boat is foreign or belonging wholly or in part to Her 
 Majesty's subjects, or that any person detained or found on board 
 any ship or boat liable to seizure is or is not a subject of Her 
 Majesty, or that any goods thrown overboard, staved, or destroyed, were 
 so thrown overboard, staved, or destroyed to prevent seizure, or that 
 any goods thrown overboard, staved, or destroyed during chase by 
 any ship or boat in Her Majesty's service, or in the service of the 
 Eevenue, were so thrown overboard, staved, or destroyed to avoid 
 seizure, or that any person is an officer of customs or excise, or that 
 any person was employed for the prevention of smuggling, or that 
 the offence was committed within the limits of any port, or where the 
 offence is committed in any port of the United Kingdom, the naming 
 of such port in any information or proceedings shall be deemed to 
 be sufficient, unless the defendant in any such case shall prove 
 to the contrary.' 
 
 Sec. 261. ' If, upon any trial, a question shall arise whether any per- 
 son is an officer of the army, navy, marines, or coastguard, duly employed 
 for the prevention of smuggling, or an officer of customs or excise, his 
 own evidence thereof, or other evidence of his having acted as such, 
 shall be deemed sufficient, without production of his commission or 
 deputation ; and every such officer, and any person acting in his aid or 
 assistance, shall be deemed a competent witness upon the trial of any 
 suit or information on account of any seizure or penalty as aforesaid, 
 notwithstanding such officer or other person may be entitled to the 
 whole or any part of such seizure or penalty, or to any reward upon 
 the conviction of the party charged in such suit or information.' 
 
 Sec. 262. ' Upon the trial of any issue, or upon any judicial hearing 
 or investigation touching any seizure, penalty, or forfeiture, or other 
 proceeding under the Customs Acts, or any Act relating to the excise, 
 or incident thereto, where it may be necessary to give proof of any 
 order issued by the Commissioners of the Treasury, or by the Com- 
 missioners of Customs, or Inland Eevenue respectively, the order, or 
 any letter or instructions referring thereto, which shall have been 
 officially received by any officer of customs or excise for his govern- 
 ment, and under which he shall have acted as such officer, shall be 
 admitted and taken as sufficient evidence and proof of such order.' 
 
 Sec. 263. ' Condemnation by any justice under the Customs laws 
 may be proved in any court of justice, or before any competent tribunal,
 
 chap, x.] Of Offences against the Revenue Laivs. 287 
 
 by the production of a certificate of such condemnation purporting to 
 be signed by such justice, or an examined copy of the record of such 
 condemnation certified by the clerk to such justice.' 
 
 Sec. 284. ' For the purposes of this or any other Act relating to 
 the Customs and in construing the same, the following terms, when 
 not inconsistent with the context or subject matter, shall have the 
 several meanings, and include the several matters and things herein- 
 after prescribed and assigned to them ; that is to say : 
 
 ' Attorney-General ' shall include solicitor-general, attorney-general 
 in the Isle of Man, procureur, or other chief law officer of the Crown, 
 in any of Her Majesty's possessions abroad, where there is no attorney- 
 general. 
 
 ' British possession shall mean and include colony, plantation, 
 island, territory, or settlement belonging to Her Majesty. 
 
 ' County ' shall mean and include any city, county of a city, county 
 of a town, borough, or other magisterial jurisdiction where such con- 
 struction is not inconsistent with the context. 
 
 ' Customs Acts ' shall mean and include this and all or any other 
 Acts or Act relating to the Customs. 
 
 ' Drawback ' shall include bounty. 
 
 ' Gaoler ' shall mean and include any governor or keeper of Her 
 Majesty's prisons. 
 
 ' Her Majesty ' shall mean Her Majesty, her heirs and successors. 
 
 ' Importer ' shall mean, include, and apply to any owner or other 
 person for the time being possessed of or beneficially interested in any 
 goods at and from the time of the importation thereof, until the same 
 are duly delivered out of the charge of the officers of Customs. 
 
 ' Justice ' shall mean and include justice of the peace, county court 
 judge, recorder, sheriff depute, governor, deputy-governor, lieutenant- 
 governor, bailiff, chief magistrate, deemster, jurat, and any other magis- 
 trate in the United Kingdom and the Channel Islands. 
 
 ' Master ' shall mean the person having or taking the charge or com- 
 mand of any ship. 
 
 ' Official import lists and official export lists ' shall mean any lists 
 which are now or shall from time to time be issued under the authority 
 of the Commissioners of the Treasury or Customs, prescribing the 
 denominations, descriptions, and quantity by tale, weight, measure, 
 value, or otherwise, by which articles of merchandise shall be required 
 to be entered on their importation into or exportation from the United 
 Kingdom. 
 
 ' Proper officer of Inland Revenue,' in the fourth section of the Act 
 of the thirty-seventh and thirty-eighth years of Her Majesty's reign, 
 shall mean ' proper officer of customs.' 
 
 ' Queen's warehouse ' shall mean any place provided by the Crown 
 or approved by the Commissioners of Customs for the deposit of goods 
 for security thereof and of the duties due thereon. 
 
 ' Warehouse ' shall mean any place in which goods entered to be 
 warehoused may be lodged, kept, and secured.' 
 
 In a case under the 6 Geo. 4, c. 108, s. 34, a count alleged that 
 certain spirituous liquors were about to be imported, in respect of 
 which certain duties would be payable, and that R. H. was a person 
 employed in the service of the customs of our Lord the King, and that
 
 288 Of Offences against the Revenue Laws. [book ii. 
 
 it was the duty of E. H., as such person so employed in the service of 
 the customs as aforesaid, to arrest and detain all such good and mer- 
 chandizes as should within his knowledge he imported, which, upon 
 such importation thereof, would become forfeited ; and that the de- 
 fendant unlawfully solicited R. H. to forbear to arrest and detain the 
 said goods ; it was objected, in arrest of judgment, that as the law did 
 not cast upon all persons in the service of the customs the duty of 
 making seizures, and the count did not show that H. was a person 
 coming within any of the three classes described in sec. 34 of 6 Geo. 4, 
 c. 108, the count was bad: and the Court held that the allegation that 
 it was H.'s duty to seize the goods, which upon importation were for- 
 feited, was an allegation of matter of law. That being so, the facts 
 from which that duty arose ought to have been stated in the count. 
 If, indeed, it could be said to be the duty of every person employed in 
 the service of the customs to seize such goods, then the allegation 
 would have been sufficient. But it clearly was not the duty of every 
 such person, and therefore the indictment was bad. (cf) 
 
 Upon a clause in the 52 Geo. 3, c. 143, s. 11 (now repealed), which 
 was similar to s. 193 of the present Act, it was determined that where a 
 custom-house vessel had chased a smuggler and fired into her without 
 hoisting the pendant and ensign then required by the 56 Geo. 3, c. 104, 
 s. 8, the returning such fire was not malicious. The indictment was 
 for shooting at a vessel in the service of the customs on the high seas 
 within one hundred leagues of the coast of Great Britain ; and also 
 for maliciously shooting at an officer of the customs, &c. It appeared 
 that the vessel chased a smuggler within the limits ; the smuggler did 
 not bring to upon being chased and a signal-gun fired ; whereupon the 
 custom-house vessel fired at the smuggler, and the smuggler returned 
 the fire, and they had a regular engagement, in which one of the 
 custom-house officers was severely wounded. In order to prove the 
 right of firing at the smuggler, the 56 Geo. 3, c. 104, s. 8, was referred 
 to, which, in the case of ships employed to prevent smuggling by the 
 Treasury, Admiralty, Customs, or Excise, gave the power of firing at 
 the smuggler, if the ship had a pendant and ensign hoisted of such 
 description as his Majesty by any order in council, or by royal pro- 
 clamation under the great seal, should direct. There had been no 
 proclamation, nor was any order in council proved ; though, after the 
 trial, an order in council was discovered, which required certain 
 particulars in the pendant and ensign which this ship's pendant and 
 ensign had not. Upon a case reserved, eleven judges (Best, J., being 
 absent) were clear that, as the custom-house vessel had not complied 
 with what was required to make her shooting legal, the smuggler's 
 firing was not in law malicious. (A) 
 
 Upon a clause in the 19 Geo. 2, c. 34 (now repealed), which 
 relates to offences committed by persons, to the number of three 
 or more, armed with firearms, or other offensive weapons, it was 
 decided that in order to bring offenders within its penalties, it was 
 necessary that they should be armed with weapons which might 
 properly be called offensive, (i) It seems that a person catching 
 
 \q) R. & Everett, 8 B. & C. C. 114. 2 (h) R. v. Reynolds, Mich. T. 1821. MS. 
 
 M. & R. 35. Bay ley, J. R. & R. 465. 
 
 (i) Hutchinson's case, 1 Leach, 342.
 
 chap, x.] Of Offences against the Revenue Latvs. 289 
 
 up a hatchet accidentally, during the hurry and heat of an affray, 
 was not armed with an offensive weapon within the meaning of 
 that Act;(y) and in one case it was held, that large sticks aboul 
 three feet long, with large knobs at the end, with several prongs, 
 the natural growth of the stick, arising out of them, were not offensive 
 weapons ; and that, from the preamble of the statute, the weapons 
 must be such as the law calls dangerous. (&) But in a subsequent 
 case, the Court said, that although it was difficult to say what should 
 or should not be called an offensive weapon, it would be going a great 
 deal too far to say that nothing but guns, pistols, daggers, and instru- 
 ments of war, should be so considered ; and that bludgeons properly 
 so called, clubs, and anything that was not in common use for any 
 other purpose but a weapon, were clearly offensive weapons within the 
 meaning of the Legislature. (7) In a case upon a former statute (9 
 Geo. 2, c. 35, s. 10), where the same words, 'armed with firearms, or 
 other offensive arms or weapons,' occurred, it was held that a person 
 armed only with a common whip was not an offender within the mean- 
 ing of the Act ; though he aided and assisted other persons who were 
 armed with firearms and weapons which were clearly offensive, (m) 
 But with respect to the latter part of this judgment, a different doctrine 
 appears to have been held by Lord Mansfield upon the 19 Geo. 2, c. 34, 
 who is reported to have said, that where a person was assembled to- 
 gether with others who were armed, and was active, it was not neces- 
 sary that such individual should be armed, (ii) 
 
 Where a number of persons were assembled for the purpose of 
 landing smuggled goods, and they were, as is usual on such occa- 
 sions, divided into two different parties, one called the company, who 
 had bats in their hands for the purpose of carrying the tubs of spirits 
 (which bats were hop-poles about seven feet in length), and the other 
 called the protecting party, who were armed with muskets ; and the 
 prisoner was one of the company, and carried a bat, but he did not 
 strike any one with it, but some of the men with bats struck some of 
 the preventive men ; as the bats might be used for offensive purposes, 
 it was left to the jury to say whether the bats were offensive weapons 
 or not. (p) 
 
 Upon the 7 Geo. 2, c. 21 (now repealed), by which any person who 
 should, with an offensive weapon or instrument, assault with intent to 
 rob, was made guilty of felony, it was decided that the words ' offensive 
 weapon or instrument,' would apply to a stick, though not of extra- 
 ordinary size, and though it might in general have been used as a 
 walking-stick. An indictment was for assaulting with an offensive 
 weapon, viz., a stick, with intent to rob ; and it appeared that the stick 
 was like a common walking-stick, about a yard long, and not very 
 thick, but that the prisoner, when he came up to the prosecutor, struck 
 him violently on the head with it, so as to cut his head and make it 
 bleed; and two of the prisoner's comrades afterwards came up and 
 
 (j) Rose's case, 1 Leach, 342, note (a). (m) Fletcher's case, 1 Leach, 23. 
 
 (k) Ince's case, 1 Leach, 342, note (a). (?i) Franklin's case, 1 Leach, 255. S. C. 
 
 (1) Cosan's case. In this case it was Cald. 244. And this appears to be the cor- 
 
 contended, upon the authority of Ince's rect doctrine, see R. v. Smith, R. & R. 368, 
 
 case, that very large club sticks, such as post. Night poaching, 
 
 people ride with, to defend themselves, are (o) R. v. Noakes, 5 C. & P. 326, Little- 
 
 not offensive weapons. 1 Leach, 342, 343, dale, J., Alderson, J., Bolland, B. 
 note (a). 
 
 vol. i. — 19
 
 290 Of Offences against the Revenue Laws. [book lu 
 
 beat the prosecutor on the head with similar sticks. Holroyd, J. told 
 the jury, that as the prisoner had used the stick as a weapon of offence, 
 he thought it ought to be considered as an offensive weapon; and the 
 jury having convicted the prisoner, the judges agreed with Holroyd, J., 
 and held the conviction right, (p) And in a similar case on the 9 Geo. 4, 
 c. 69, s. 9 (the Night Poaching Act), it was held to be a question for 
 the jury whether the prisoner had taken out a stick, large enough to 
 be called a bludgeon, which he, being lame, was in the habit of using 
 as a crutch, with intent to use it as an offensive weapon, or merely 
 for the purpose to which he usually applied it. (q) From a case upon 
 the same repealed statute (7 Geo. 2, c. 21), where the indictment was 
 for assaulting with a certain offensive weapon called a wooden staff, 
 and the evidence proved a violent blow with a great stone, as it was 
 h olden that the conviction of the prisoner was proper, it appears to 
 follow that both a wooden staff and a great stone were considered as- 
 offensive weapons within the meaning of that statute, (r) 
 
 The term, weapon, would seem to include any instrument of metal 
 or wood, or any club, stone, or other thing which is had for the pur- 
 pose of effecting an injury on the person, according to the doctrine of 
 the Roman law, Teli appellations et ferrum, et fastis, et lapis, et 
 denique ornne quod nocendi causd habetur, significatur. (s) 
 
 As to the assembling, it was determined upon the repealed statute 
 (19 Geo. 2, c. 34), that it must be deliberate, and for the purpose of 
 committing the offence described in the statute. So that where a set 
 of drunken men came from an alehouse, and hastily set themselves 
 to carry away some Geneva which had been seized by the excise 
 officers, it was thought very questionable whether the object which 
 the Legislature had in view could be extended to such a case ; and 
 the Court said, that the words of the statute manifestly alluded to 
 the circumstance of great multitudes of persons coming down upon 
 the beach of the sea for the purpose of escorting uncustomed goods to 
 the places designed for their reception, (t) 
 
 Upon a clause of the repealed statute (9 Geo. 2, c. 35, s. 26), by 
 which it was enacted, that an assault committed upon any of the 
 officers of the customs and excise should be tried in any county in 
 England, in such manner and form as if the offence had been therein 
 committed, it was decided that the provision extended only to revenue 
 officers, qua officers : and a defendant having been found guilty, on an 
 indictment, of a common assault on the prosecutor, who was an excise 
 officer, the Court of King's Bench arrested the judgment, though the 
 prosecutor was described to be an excise officer, the offence being laid 
 in Surrey, and the venue in Middlesex, (u) 
 
 (p) R. v. Johnson, Mich. T. 1822. R. (.?) Heinec. Antiq. Tit. I, s. P. 
 
 & R. 492 (t) Hutchinson's case, 1 Leach, 343. 
 
 (q) R. v. Palmer, 1 M. & Rob. 70. The Court offered the Attorney-General a 
 
 Taunton, J. See post. Night poaching. special verdict upon this case: but he de- 
 
 (r) Sherwin's case, Oakham. 1785, 1 clined to take it, and the prisoners were 
 
 East, P. C. c. 8, s. 13, p. 421. The ground acquitted. This construction of the statute 
 
 upon which the judges held in this case, as to the assembling being deliberate, and 
 
 that the evidence was sufficient to maintain for the purpose of committing the offence, 
 
 the charge in the indictment, was that the is stated to have been adopted by Willes. 
 
 weapon laid in the indictment, and the J., and Hotham, B., in Spice's case, Old 
 
 weapon proved, produce the same sort of Bailey, December, 1785, and by Heath, J., 
 
 mischief, viz., by blows and bruises; and in Gray's case, Old Bailey, July in the same 
 
 that the description would have been suf- year. 1 Leach, 343, note (a). 
 ficient in an indictment for murder. (u) R. v. Oartwright, 4 T. R. 490.
 
 CHAPTER THE ELEVENTH. 
 
 OF HINDERING THE EXPORTATION OF CORN, OR PREVENTING 
 ITS CIRCULATION WITHIN THE KINGDOM. 
 
 By the 11 Geo. 2, c. 22, s. 1, persons hindering the exportation of 
 corn by violence may be dealt with summarily by two justices of the 
 peace, (a) 
 
 By sec. 2, ' if any person or persons shall wilfully and maliciously 
 pull, throw down, or otherwise destroy, any storehouse or granary, or 
 other place where corn shall be then kept in order to be exported ; 
 or shall unlawfully enter any such storehouse, granary, or other place, 
 and take and carry away any corn, flour, meal, or grain therefrom ; 
 or shall throw abroad, or spoil the same, or any part thereof; or shall 
 unlawfully enter on board any ship, barge, boat, or vessel, and shall 
 wilfully and maliciously take and carry away, cast or throw out 
 therefrom, or otherwise spoil or damage, any meal, flour, wheat, or 
 grain, therein intended for exportatation ; ' every such offender being 
 convicted, shall be adjudged guilty of felony, and transported (6) for 
 seven (c) years. QP) 
 
 By the 36 Geo. 3, c. 9, s. 1, persons using violence to deter others 
 from buying corn within the kingdom, or stopping any corn, breaking 
 waggons, &c, carrying corn, or taking off the horses, or beating the 
 drivers, or scattering or taking corn, may be summarily convicted. 
 
 By sec. 2, 'if any person or persons with intent to prevent or hinder 
 any cqrn, meal, flour, malt, or grain, from being lawfully carried or 
 removed from any place whatsoever, shall wilfully and maliciously 
 pull, throw down, or otherwise destroy any storehouse or granary, or 
 other place, in which corn, meal, flour, malt, or grain, shall be then 
 kept ; or shall unlawfully enter any such storehouse, granary, or other 
 place, and take and carry away any corn, flour, meal, malt, or grain, 
 therefrom ; or shall throw abroad or spoil the same or any part thereof ; 
 or shall unlawfully enter on board any ship, barge, boat, or vessel, 
 and wilfully and maliciously take and carry away, cast, or throw out 
 therefrom, or otherwise spoil or damage, any corn, flour, meal, malt, or 
 
 (a) Sec. 3 provides that attainder shall statute as relates to any person who shall 
 not work corruption of blood, loss of dower, beat, wound, or use any other violence to 
 or disinheritance ; and by sec. 4, no person, any person or driver, and so much thereof 
 who shall be punished for any offence by as makes any second offence felony, is re- 
 virtue of this Act, shall be punished for the pealed by the 9 Geo. 4, c. 31. 
 same offence by any other law or statute. (b) Penal servitude by the 20 & 21 Vict. 
 Sees. 5, 6, 7, and 8, relating to actions by c. 3, s. 2. 
 
 persons against the hundred for damages (c) And not less than three years. See 
 
 done to their properties, are repealed by the 54 & 55 Vic. c. 69. 
 7 & 8 Geo. 4, c. 27 ; and so much of this (d) See 30 & 31 Vict. c. 59.
 
 292 Of Hindering the Exportation of Corn, Etc. [book ii. 
 
 grain therein ; ' every person so offending, and being convicted, .shall 
 be adjudged guilty of felony, and be transported (e) for seven (/) 
 years ; and if such offender shall return into this kingdom before the 
 expiration of the si j ven years, he or she shall suffer death as a felon 
 without benefit of clergy, (g) The section further provides that 
 attainder shall not work corruption of blood, loss of dower, or dis- 
 inheritance of heirs. And by the sixth section it is provided that 
 nothing contained in the Act shall abridge or take away any provision 
 already made by the law of the realm, for the suppression or punish- 
 ment of any offence whatsoever, mentioned or described in this Act ; 
 and it is provided also, that no person who shall be punished by 
 virtue of this Act shall be punished for the same offence by virtue of 
 any other law or statute whatsoever, (h) 
 
 By the 24 & 25 Vict, c. 100, s. 39, ' Whoever shall beat, or use any 
 violence or threat of violence to any person, with intent to deter or 
 hinder him from buying, selling, or otherwise disposing of, or compel 
 him to buy, sell, or otherwise dispose of, any wheat or other grain, flour, 
 meal, malt, or potatoes, in any market or other place, or shall beat or 
 use any such violence or threat to any person having the care or charge 
 of any wheat or other grain, flour, meal, malt, or potatoes, whilst on 
 the way to or from any city, market-town, or other place, with intent 
 to stop the conveyance of the same, shall, on conviction thereof before 
 two justices of the peace, be liable to be imprisoned and kept to hard 
 labour in the common gaol or house of correction for any term not 
 exceeding three months : provided that no person who shall be pun- 
 ished for any such offence by virtue of this section shall be punished 
 for the same offence by virtue of any other law whatsoever.' 
 
 (e) See note (b), supra. Geo. 4, c. 27, and the Stat. Law Eev. Act 
 
 (f) See 'note (c), supra. 1871. And so much of this statute asre- 
 
 (g) See 4 & 5 Will. 4, c. 67. lates to any person who shall beat, wound, 
 (h) Sees. 3, 4, and 5, relating to proceed- or use any other violence to any person or 
 
 ings against the hundred for damages done driver, and so much thereof as makes any 
 to the properties of persons, by offender second offence felony, is repealed by the 
 against this Act, are repealed by the 7 &8 9 Geo. 4, c. 31.
 
 CHAPTER THE TWELFTH. 
 
 OF PERJURY 1 AND SUBORNATION OF PERJURY. 2 
 
 At common law. — Perjury by the common law appears to be a 
 wilful false oath by one who, being lawfully required to depose the 
 truth in any proceeding in a court of justice, swears absolutely in a 
 matter of some consequence to the point in question, whether he be 
 believed or not. (a) 
 
 Subornation of perjury by the common law is an offence in pro- 
 curing a man to take a false oath amounting to perjury, who actually 
 takes such oath. But it seems clear that if the person incited to take 
 such an oath do not actually take it, the person by whom he was so 
 incited is not guilty of subornation of perjury, yet it is certain that he 
 is liable to be punished, not only by fine, but also by infamous corporal 
 punishment, (b) 
 
 An indictment charged that the defendant, an attorney, being retained 
 to defend Wood against a charge of picking Lewis's pocket, deceitfully 
 procured himself to be employed by Lewis, and persuaded Lewis to 
 swear before the grand jury that he did not know who picked his 
 pocket, which he did, and no bill was returned. An objection was 
 made that Lewis's evidence was not stated to have been false ; but, 
 upon a case reserved, the judges thought it unnecessary, as the defend- 
 ant's crime was the same, unless he knew it to be true, and that he 
 should have proved, (c) 
 
 The false oath must be wilful, and taken with some degree of delib- 
 eration ; thus if it appears that it was occasioned by surprise, or inad- 
 
 (a) 1 Hawk. P. C. c. 69, s. 1. 3 Inst. (c) R. v. Edwards, East. T. 1764, MS. 
 164. Com. Dig. tit. Justice of Peace, B. 102. Bayley, J. And as to dissuading witnesses 
 Bac. Ab. tit. Perjury. from giving evidence, see ante, p. 197. 
 
 (b) 1 Hawk. P. C. c. 69, s. 10. Bac. Ab. 
 tit. Perjury, and the authorities there cited. 
 
 American Notes. 
 
 1 See P. v. Evans, 40 N. Y. 1 ; Rump v. United States must be tried in a United 
 
 C, 6 Casey, 475 ; P. v. Sweetman, 3 Parker, States Court, not in a State Court. Bishop, 
 
 C. R. 358 ; Cathran v. S., 39 Miss. 541 ; vol. ii., ss. 1022 et scq. 
 
 Chapman v. Gillett, 2 Conn. 40; Shaffers. 2 In America there are statutes regulating 
 
 Kintzer, 1 Binn. 543 ; S. v. Hanson, 39 this offence, and false swearing not always 
 
 Maine, 337 ; S. v. Beard, 1 Dutch. 384 ; S. being there perjury, a procuring of such false 
 
 v. Kennerly, 10 Rich. (Laws) 152; S. v. swearing is not subornation of perjury, S. v. 
 
 Lamont, 2 Wis. 437 ; C. v. Powell, 2 Met. Wymberley, 40 La. An. 460. Both the 
 
 (Ivy.) 10. In some States in America per- suborner and the suborned must know the 
 
 jury is a felony. In some States statutes testimony to be false, and the former must 
 
 have been passed against 'false swearing' know that the latter knows it to be false, 
 
 rendering persons making false declarations otherwise there is no corruption. U. S. v. 
 
 upon oath liable to indictment. Bishop, Evans, 10 Saw. 132, 19 Fed. Rep. 912 ; 
 
 vol. ii., ss. 1014, 1054. Perjury against the Coyne v. P., 124 111. 17, 7 Am. St. 324.
 
 294 Of Perjury and Subornation of Perjury, [book ii. 
 
 vertency, or a mistake of the true state of the question, it cannot be 
 considered to amount to voluntary and corrupt perjury, (d) 
 
 It has been said that no oath will amount to perjury unless it be 
 sworn absolutely and directly, and, therefore, that he who swears a 
 thing according as he thinks, remembers, or believes, cannot, in respect 
 of such an oath, be found guilty of perjury, (e) But De Grey, C. J., 
 appears to have laid down a different doctrine. (/) And Lord Mans- 
 field, C. J., is stated to have said, ' It is certainly true that a man may 
 be indicted for perjury in swearing that he believes a fact to be true 
 which he must know to be false.' (g) It is further said that, upon this 
 question being agitated in the Court of Common Pleas, all the judges 
 were unanimous that belief was to be considered as an absolute term, 
 and that an indictment might be supported upon such a statement(A) 
 
 An indictment for perjury alleged that the defendant swore that 
 he thought that certain words written in red ink were not his writing ; 
 whereas the defendant, when he so deposed, thought that the said words 
 were his writing ; and the Court of Queen's Bench held that the 
 assignment was sufficient. If a witness swore that he thought a cer- 
 tain fact took place, it might be difficult indeed to show that he com- 
 mitted wilful perjury. But it was certainly possible, and the averment 
 was as properly a subject of perjury as any other, (i) 
 
 The important requisites in a case of perjury appear to be these : 
 the false oath must be taken in a judicial proceeding, before a compe- 
 tent jurisdiction, and it must be material to the question depending, (j) 
 
 With respect to the falsity of the oath it should be observed, that it 
 has been considered not to be material whether the fact, which is 
 sworn, be in itself true or false ; for, howsoever the thing sworn may 
 happen to prove agreeable to the truth, yet, if it were not known to be 
 so by him who swears to it, his offence is altogether as great as if it 
 had been false, inasmuch as he wilfully swears that he knows a thing 
 to be true which at the same time he knows nothing of, and impudently 
 endeavours to induce those before whom he swears to proceed upon 
 the credit of a deposition which any stranger might make as well as 
 he. (k) 
 
 The oath must be taken either in a judicial proceeding, or in some 
 other public proceeding of the like nature, wherein the King's honour 
 or interest are concerned ; as before commissioners appointed by the 
 King to inquire of the forfeitures of his tenants, or of defective titles 
 wanting the supply of the King's patents. But it is not material 
 
 (d) See 1 Hawk. P. C. c. 69, s. 2. (j) Bv Lord Mansfield, C. J., in R. v. 
 
 (e) 3 lust. 166. Aylett, 1 T. R. 69. 
 
 (/) Miller's case, 3 Wils. 427. 2 Black. (k) 1 Hawk. P. C. c. 69, s. 6. R. v. 
 
 Rep. 881. Edwards, cor. Adams, B., Shrewsbury Lent 
 
 ('/) Pedley's case, 1 Leach, 325. Ass. 1764 ; and subsequently considered of 
 
 (h) Anon. C. P. Mich. T. 1780. 1 Hawk. by the judges, MS. And see per Lawrence, 
 
 P. C. c. 69, s. 7, note (a), p. 88 (ed. 1795). J., in R. v. Mawbey, 6 T. R. 619. 2 Rolle 
 
 See R. v. Crespigny, 1 Esp. 280. Lord Ken- Abr. Indictment (E), pi. 5, p. 77. Allen v. 
 
 yon, C. J. Westley, Hetley, 97. Gurney's case, 3 Inst. 
 
 (i) R. v. Schlesinger, 10 Q. B. 670. 166. See R. v. Newton, 1 (J. & K. 469, for 
 
 a count framed to meet such a case. 1 
 
 American Note. 
 
 l See Bishop, s. 1048, citing S. v. Gates, 17 N. H. 373 ; Byrnes v. Byrnes, 102 N. Y. 4 ; S. 
 i\ Knox, Phillips N. C. 312.
 
 chap, xii.] Of Peryury and Subornation of Perjury. 295 
 
 whether the Court, in which a false oath is taken, be a court of record 
 or not, or whether it be a court of common law, or a court of equity, or 
 civil law, &c, or whether the oath be taken in the face of the Court, or 
 out of it before persons authorized to examine a matter depending in 
 it, as before the sheriff on a writ of inquiry, &c, or whether it be taken 
 in relation to the merits of a cause, or in a collateral matter, as, where 
 one who offers himself to be bail for another, swears that his substance 
 is greater than it is. (/) But neither a false oath in a mere private 
 matter, as in making a bargain, &c, nor the breach of a promissory 
 oath, whether public or private, is punishable as perjury, (m) 
 
 Much doubt formerly prevailed in certain cases as to the power to 
 administer an oath ; but this doubt is, to a great extent, removed by 
 the Act to Amend the Law of Evidence, 14 & 15 Vict. c. 99, s. 16, by 
 which ' every court, judge, justice, officer, commissioner, arbitrator, (n) 
 or other person now or hereafter having by law or by consent of parties, 
 authority to hear, receive, and examine evidence, is hereby empowered 
 to administer an oath to all such witnesses as are legally called before 
 them respectively.' 
 
 Oath to procure a marriage licence. — It was at one time doubted 
 whether a false oath taken in Doctors' Commons, for the purpose of 
 obtaining a marriage licence, amounts to perjury. But it has been 
 since decided that a false oath before a surrogate, taken in order to 
 procure a marriage licence, will not support a prosecution for perjury ; 
 and, further, that if the indictment only charges the taking the false 
 oath without stating that it was for the purpose of procuring a licence, 
 or that a licence was procured thereby, the party cannot be punished 
 thereupon as for a misdemeanor. The indictment stated that the 
 prisoner, being minded to procure a marriage between himself and 
 A. B., went before a surrogate, and was sworn to an affidavit in writing, 
 that the said A. B. had been residing four weeks in the parish of S., 
 whereas she had not, and so he had committed perjury ; and the indict- 
 ment had all apt allegations of an indictment for perjury. But a case 
 being reserved upon the question whether on such an affidavit the 
 party could be prosecuted for perjury, and if not, whether upon this 
 indictment any offence was charged, the judges were unanimous that 
 upon an oath before a surrogate, perjury could not be assigned ; and 
 that as this indictment did not charge that the defendant took the oath 
 to procure a licence, or that he did procure one, no punishment could 
 be inflicted, and he was therefore pardoned, (o) 
 
 The third count of an indictment stated that W. James was a surro- 
 gate having authority to grant licences for marriages, and that the 
 defendant applied to the said W. James to grant a licence for the 
 solemnization of a marriage between J. Baker and S. Fry, and that the 
 defendant, unlawfully intending to obtain such licence for the said 
 
 (J) 1 Hawk. P. C. c. 69, s. 3. Bac. Abr. 63. The point was submitted to the judges, 
 
 tit. Perjury (A). See R. v. Crossley, 7 T. R. and several times agitated ; but the result 
 
 315. was not communicated, as the prisoner died 
 
 (?«) 1 Hawk. P. C. c. 69, s. 3. Bac. in Newgate. Woodman's case, 1 Leach, 64, 
 
 Abr. tit. Perjury (A). note (a). The point appears to have been 
 
 (?i) R. v. Hallett, 2 Den. C. C. 237, a submitted also in this case to the considera- 
 
 case before this Act. tion of the twelve judges ; but their opinion 
 
 (o) R. v. Forster, MS. Bayley, J., and was not publicly communicated. See 3 Chit. 
 
 R. & R. 459. See Alexander's case, 1 Leach, Crim. L. 713.
 
 296 Jurisdiction to Administer Oath. [book II. 
 
 marriage in fraud of the 4 Geo. 4, c. 76, (p), for the purpose of obtaining 
 such licence, before the said W. James took his corporal oath upon the 
 Holy Gospel of God, and that the defendant being so sworn as afore- 
 said before the said W. James as such surrogate (he the said W. James 
 having competent authority, as such surrogate, to administer the said 
 oath) did, for the purpose of thereby obtaining such licence for the 
 marriage of the said J. Baker and S. Fry, falsely, corruptly, &c, swear, 
 &c, that the name of him, the defendant, was J. Baker, and that he 
 was one of the parties for whose marriage a licence was then applied 
 for, and that he was a yeoman and widower, and that the said S. Fry 
 had had her usual place of abode within the parish of W. in the 
 county of S. for the space of fifteen days then last past. (The count 
 then negatived the matter sworn in the usual manner.) By means of 
 which false oath the defendant did then obtain from the said W. 
 James, so being such surrogate, a licence for the solemnization of a 
 marriage between the said J. Baker and S. Fry. The prisoner having 
 been convicted, upon a case reserved, it was contended that this count 
 charged no offence. That a surrogate had no authority to administer 
 an oath, and at all events not this oath, to the defendant. That the 
 count did not aver that a written licence was obtained, or the marriage 
 celebrated by means of such licence. But it was held that the count 
 charged a misdemeanor. It distinctly averred that the prisoner swore 
 falsely as to S. Fry ; and any one material fact falsely sworn to was suffi- 
 cient to support the charge. Then the only question was as to the 
 surrogate's power to administer the oath ; not such an oath as would sup- 
 port an indictment for perjury, but as would make a party guilty of a 
 misdemeanor. By the canon law the surrogate had such power, and 
 the 4 Geo. 4, c. 76, seemed to assume that power. To make a false oath 
 in order to procure a marriage licence from an officer empowered to 
 grant such licence was a misdemeanor, because it was a step toward 
 the accomplishment of a misdemeanor. The actual celebration of the 
 marriage was immaterial. Anything essentially connected with marriage 
 was a matter of public concern, and therefore might involve criminal 
 consequences, (q) 
 
 (p) In one case the question whether a the girl was the illegitimate daughter of G. 
 father of an illegitimate child was included in E., who had not given his consent to her 
 the 4 Geo. 4, c. 76, s. 16, was raised on an marriage. The Recorder held that, as the 
 indictment against the prisoner for falsely indictment had described G. E. as the 
 swearing before a surrogate that the father natural and lawful father, and the evidence 
 had given his consent to the marriage of showed that E. A. E. had no natural and 
 his daughter, but not decided. R. v. Fairlie, lawful father, the prisoner must be acquitted. 
 9 Cox, C. C. 209. The defendant was ac- (7) R. v. Chapman, 1 Den. C. C. 432, 
 quitted on the ground of a variance. The 18 L. J. M. C. 152. 2C. & K. 846. Anony- 
 indictment alleged that the prisoner, in- mous, cited by the C. J. of the K. B. 1 Ventr. 
 tending .to procure a marriage to be sol- 370. The prisoner was indicted for wilful 
 emnized between himself and E. A. E., she and corrupt perjury in making a false affi- 
 being under the age of twenty-one years, davit before a commissioner for taking oaths 
 without the consent of the natural and law- in the Court of Queen's Bench, for the pur- 
 ful father of the said E. A. E., to wit, with- pose of getting a bill of sale filed under the 
 out the consent of G. E., he being the person Bills of Sale Act, 18o4. Held, a misde- 
 whose consent was by law required before the meanor, though not wilful and corrupt per- 
 licence was granted, falsely swore that G. E., jury. Held also, that the conclusion of an 
 the natural and lawful father of the said indictment for perjury, " that so the defend- 
 minor, was consenting. The affidavit sworn ant did commit wilful and corrupt perjury" 
 by the prisoner contained the statement set might be rejected as surplusage, and a con- 
 out in the indictment ; but it appeared that viction for the misdemeanor was right upon
 
 CHAP, xii.] Of Perjury and Subornation of Perjury. 297 
 
 Before the C. L. P. Act, 1852, if an action had abated by the death 
 of a co-plaintiff, and no suggestion had been entered according to the 
 8 & 9 Will. 3, c. 11, s. 6, a trial was extra-judicial, and no perjury 
 could be assigned upon any false evidence given at such trial, (r) 
 
 Oath must be taken before a competent jurisdiction. 2 — The oath 
 must be taken before a competent jurisdiction, that is, before some 
 person or persons lawfully authorized to administer it. So that a 
 false oath taken in a court of requests, in a matter concerning lands, 
 has been holden not to be indictable, that court having no jurisdiction 
 in such cases, (s) And it seems clear, that no oath whatsoever taken 
 before persons acting merely in a private capacity, or before those who 
 take upon them to administer oaths of a public nature, without legal 
 authority for their so doing, or before those who are legally authorized 
 to administer some kinds of oaths, but not those which happen to be 
 taken before them, or even before those who take upon them to admin- 
 ister justice by virtue of an authority seemingly colourable, but in 
 truth unwarrantable and merely void, can ever amount to perjuries in 
 the eye of the law, because they are of no manner of force, but are 
 altogether idle, (t) But a false oath taken before commissioners, 
 whose commission at the time is in strictness determined by the 
 demise of the King, is perjury, if taken before such time as the 
 commissioners had notice of the demise ; for it would be of the ut- 
 most ill consequence in such case to make their proceedings wholly 
 void, (u) 
 
 By 27 & 28 Vict. c. 19, entitled 'An Act to make provision for the 
 discipline of the Navy,' s. 63, every person who, upon any examination 
 upon oath or upon affirmation before any court-martial held in pur- 
 suance of this Act, shall wilfully and corruptly give false evidence, 
 shall be deemed guilty of wilful and corrupt perjury, and every such 
 offence, wheresoever committed, shall be triable and punishable in 
 England ; and where any such offence committed out of England is 
 tried in England, all statutes and laws, applicable to cases of per- 
 jury, shall apply to the case. 
 
 Wilful and corrupt false swearing before a local marine board, duly 
 and lawfully appointed and constituted, under 17 & 18 Vict. c. 104, 
 upon a matter material to an inquiry then being lawfully investigated 
 by them, under 25 & 26 Vict. c. 63, s. 23, is perjury, (v) 
 
 such an indictment. R. v. Hodgkiss, 39 L. (u) 1 Hawk. P. 0. c. 69, s. 4. Bac. Ab. 
 
 J. M. C. 14, L. R. 1 C. C. R. 212. 1 tit. Perjury (A). 
 
 (r) R. v. Cohen, 1 Stark. R, 511. See (v) R. v. Tomlinson, 36 L. J. M. C. 41 ; 
 
 now the 15 & 16 Vict. c. 76, s. 135. 1 L. R. C. C. C. 49. It seems that the tak- 
 
 (s) Buxton v. Gouch, 3 Salk. 269. ing of a false oath before a court-martial is 
 
 (t) 1 Hawk. P. C. c. 69, s. 4, and the perjury at common law, R. v. Heane, 4 B. 
 
 authorities there cited ; 4 Black. Com. 137. & S. 947 ; 33 L. J. M. C. 115. 
 
 See the 5 & 6 Will. 4, c. 62, s. 13, post. 
 
 American Notes. 
 
 1 See C. v. Still, 83 Ky. 275 ; Tattle v, et seq. of cases of perjury before special and 
 P., 36 N.Y. 431 ; Warner v. Fowler, 8 Md. peculiar tribunals, but they are too numerous 
 25 ; Smith v. Myers, 41 Md. 425. to be given here. Neither in America nor in 
 
 2 A number of instances are given in Mr. England can perjury be assigned on an extra- 
 Bishop's New Criminal Law, vol. ii., ss. 1024 judicial oath, s. 1027.
 
 298 Jurisdiction to Administer Oath. [book ii. 
 
 By 38 & 39 Vict. c. 35 (The Public Health Act, 1875), s. 263, any 
 person who on any examination on oath, under any of the provisions 
 of this Act, wilfully and corruptly gives false evidence, shall be liable 
 to the penalties inflicted on persons guilty of wilful and corrupt 
 perjury, (w) 
 
 By 32 & 33 Vict. c. 62 (The Debtor's Act, 1869), s. 14, if any credi- 
 tor in any bankruptcy or liquidation by arrangement or composition 
 with creditors in pursuance of the Bankruptcy Act, 1869, wilfully and 
 with intent to defraud makes any false claim, or any proof, declara- 
 tion, or statement of account which is untrue in any material particu- 
 lar, he shall be guilty of a misdemeanor, punishable with imprisonment 
 not exceeding one year, with or without hard labour. 
 
 By s. 13 of the Agricultural Holdings Act, 1883 (46 & 47 Vict, 
 c. 61), in a reference under the Act the referees or umpire ' may take 
 the examination of the parties and witnesses on oath, and may ad- 
 minister oaths and take affirmations, and if any person so sworn or 
 affirming wilfully and corruptly gives false evidence he shall be guilty 
 of perjury. 
 
 By s. 47 of the Yorkshire Registries Act, 1884 (47 & 48 Vict. c. 54), 
 ' If any person making any affidavit under this Act shall therein swear 
 falsely such person shall be deemed guilty of wilful and corrupt 
 perjury.' 
 
 False evidence given at an inquiry before commissioners under the 
 Pluralities Act, 1884 (48 & 49 Vict. c. 54), is by s. 7 to be deemed 
 perjury. 
 
 Wilfully and falsely taking an oath or making an affirmation at the 
 election of a coroner is made perjury by 50 & 51 Vict. c. 71, s. 14, (4). 
 
 Sec. 8 of the Merchandise Marks Act, 1887 (50 & 51 Vict. c. 28), 
 provides that every person bringing a watch case to any assay office 
 for the purpose of its being assayed, stamped, or marked, shall make 
 a declaration before an officer of the assay office appointed for that 
 purpose or before a justice of the peace or a commissioner for oaths, as 
 to the country or place in which the case was made, and goes on (3), 
 ' Every person who makes a false declaration for the purposes of this 
 section shall be liable on conviction or indictment to the penalties of 
 perjury, and on summary conviction to a fine not exceeding £20 for 
 each offence.' 
 
 By s. 15 of the Foreign Marriage Act 1892, (x) persons making false 
 oaths or signing false notices under the Act or falsely representing 
 themselves to be persons whose consent to the marriage is required 
 by law are made liable to the penalties of perjury. 
 
 By the Commissioners for Oaths Act, 1889 (52 Vict. c. 10, s. 7), 
 ' AVhoever wilfully and corruptly swears falsely in any oath or affi- 
 davit taken or made in accordance with the provisions of this Act, 
 shall be guilty of perjury in every case where if he had so sworn in a 
 judicial proceeding before a court of competent jurisdiction he would 
 be guilty of perjury.' 
 
 (w) False evidence given on oath before Public Works Loan Commissioners, see 38 & 
 
 a referee appointed under the Agricultural 39 Vict. c. 89, s. 44 ; before Commissioners 
 
 Holdings Act, 1875 (38 &39 Vic. c. 92), is by of Customs, 39 & 40 Vict. c. 36, s. 36. 
 
 s. 26 made the subject of perjury. See also 46 (x) See post. 
 & 47 Vict. c. 61, s. 13. As to inquiries before
 
 chap, xii.] Of Perjury and Subornation of Perjury. 299 
 
 By s. 9, any offence under this Act whether committed within or 
 without her Majesty's dominions may be tried in any county in the 
 United Kingdom in which the person charged was apprehended, or is 
 in custody. 
 
 Where after a writ had issued, but before the appearance of the 
 defendant, a commission was issued to examine a witness on behalf of 
 the plaintiff, and a rule had been obtained to rescind the order for the 
 commission, it was urged in support of the rule that for a commission 
 to go the proceedings should be in such a state that perjury could be 
 assigned on the depositions ; and that could not be without an issue 
 joined, to which the matter sworn would be material. Lord Campbell, 
 C. J., ' I do not agree that there could be no indictment for perjury 
 where the examination of the witness has taken place before issue 
 joined, if his evidence be material to the issue afterwards joined.' {y) 
 
 A master extraordinary in chancery had no authority, by virtue of 
 his commission, to administer an oath in matters in the court of ad- 
 miralty, and therefore an indictment for perjury cannot be supported 
 on an oath so administered, (s) But any person who made such an 
 affidavit, with a view to its being received by the court of admiralty, 
 knowing at the same time it was false, was guilty of a misdemeanor 
 at common law. (a) 
 
 An indictment for perjury committed before the insolvent court 
 held under the now repealed Acts 5 & 6 Vict. c. 116, and 7 & 8 Vict. 
 c. 96, alleged that notice of the insolvent's petition was inserted in the 
 ' London Gazette,' and thereby a public sitting was appointed for the 
 first examination of the insolvent, and that that sitting was adjourned. 
 No evidence was given in support of these allegations, although the 
 perjury was alleged to have been committed on the day to which the 
 sitting was adjourned ; the filing of the insolvent's petition, however, 
 was proved ; and upon a case reserved, it was held that upon the 
 filing of the petition the Court had jurisdiction to institute the exami- 
 nation upon which the prisoner swore falsely ; and as the Insolvent 
 Debtors Court was a court of record, it must be presumed that its sit- 
 tings in a matter within its jurisdiction were lawfully and rightfully 
 holden ; and as the indictment contained the general allegation that 
 the Court had competent power to administer the oath to the prisoner, 
 that was sufficient under the 14 & 15 Vict. c. 100, s. 20, and the 
 allegations, of which no proof was given, might be rejected as sur- 
 plusage, (b) 
 
 Where an affidavit of debt was sworn under the 1 & 2 Vict. c. 110, 
 s. 8, with a view to make a trader a bankrupt, unless he paid or gave 
 security, &c, perjury might be assigned upon it, notwithstanding the 
 alterations introduced by the 5 & 6 Vict. c. 122, as to this mode of 
 proceeding against a trader : and such an affidavit fell within the 5 & 
 
 (y) Finney v. Beesley, 20 L. J. Q. B. 396, of perjury in an examination 'by the Court ' 
 
 17 Q. B. 86. under s. 27 of the Bankruptcy Act, 1883. 
 
 (z) R. v. Stone, Dears. C. C. 251 ; 23 It appeared that the registrar after admin- 
 
 L. J. M. C. 14. istering the oath left the room, it was held 
 
 (a) Per Pollock, C. B., and Parke, B., that there had been no valid examination 
 ibid. by ' the Court,' and the conviction was 
 
 (b) R. v. Westley, Bell, C. C. 193, 29 quashed. R. v. Lloyd, 19 Q. B. D. 213. 
 L. J. M. C. 35. The prisoner was convicted
 
 300 Jurisdiction to Administer Oath. [book ii. 
 
 6 Vict. c. 122, s. 67, and therefore might be sworn before a registrar 
 or deputy registrar of the court of bankruptcy, (c) 
 
 Where an unmarried woman obtained judgment in a county court 
 against the prisoner, and obtained a judgment summons against him 
 under the City of London Small Debts Act, 15 & 16 Vict. c. 77, and 
 on the hearing of the summons it appeared that the woman had married 
 after she had recovered judgment in the county court, and thereupon 
 the judge of the London court amended the summons by adding the 
 name of the husband, and the prisoner was charged with perjury in 
 his examination before the judge of the London court after the said 
 amendment ; it was held that the judge had no power to make the 
 amendment, and consequently the false swearing was in a cause which 
 had no existence and coram non judice. (d) 
 
 A person may be indicted for perjury who gives false evidence be- 
 fore a grand jury when examined as a witness before them upon a bill 
 of indictment, and any person, not being a grand juryman, who hears 
 the evidence given before the grand jury, is competent to prove the 
 evidence so given, (e) 
 
 Perjury was alleged to have been committed in taking a false 
 oath on a material issue at the hearing of a county coroner's 
 inquisition held before a deputy coroner in the absence of the 
 coroner. The 6 & 7 Vict. c. 83, s. 1, gives a county coroner power 
 to appoint a deputy, provided that no such deputy shall act for any 
 coroner except during the illness of the said coroner, or during his 
 absence from any lawful or reasonable cause. On the trial of the 
 indictment for perjury, the prosecution gave evidence that the cor- 
 oner, who was an attorney in practice, and registrar of the county 
 court, and held other offices, was absent from his home and place of 
 business in order to take a vacation, such absence and vacation and 
 air and exercise having been recommended to him by his medical 
 advisers as necessary for his health, which had become permanently 
 impaired from an operation which he had undergone. He spent three 
 or four days in every week shooting. The vacation for registrars was 
 appointed at that period of the year, and that was the only time of 
 the year during which he obtained a vacation. The judge held at the 
 trial that there was lawful or reasonable cause for the absence of the 
 coroner, and the prisoner was found guilty. Held, that the question 
 of lawful or reasonable cause was to be decided by the judge, and not 
 by the jury, and that there was some evidence upon which the judge 
 could so decide, and that the conviction was right. (/) 
 
 The rule of law is that, unless a statute requires it, an information 
 before a magistrate need not be on oath, or even in writing, (g) Where, 
 
 (c) R. v. Dunn, 12 Q. B. 1026. information in writing nor a summons in 
 
 (d) R. v. Pearce, 3 B. & S. 531; 9 Cox, writing. Upon a warrant issued by a justice 
 C. C. 258. under' 16 & 17 Vict. c. 119, s. 11 (An Act 
 
 (e) R. v. Hughes, 1 C. &K. 519, Timlal, for the Suppression of Betting Houses), 
 C. J. See post, as to whether a grand jury- founded upon an information that a cer- 
 man can give evidence of what passes in the tain house was used as a common gaming 
 grand-jury room. house, within the meaning of the 8 & 9 Vict. 
 
 (/) R. v. Johnson, 42 L. J. M. C. 41. c. 109 (An Act to amend the law concern- 
 
 \g) Per Parke, B. R. v. Millard, Dears, ing gaming and wagers); the house was 
 
 C. C. 166. See R. v. Shaw, 34 L. J. M. C. searched and the appellant and others appre- 
 
 169, where, per M. Smith, J., ' Unless it is hended and brought before the petty sessions, 
 
 required by statute there need not be an when the appellant was charged with having
 
 chap, xii.] Of Perjury and Subornation of Perjury. 301 
 
 therefore, an information, but not on oath, was laid before a justice 
 against a person for wilful damage to a carriage, and the prisoner was 
 indicted for perjury committed on the hearing of that information, it 
 was objected that by the 7 & 8 Geo. 4, c. 30,s. 30, (Ji) the information 
 ought to have been on oath , but it was held that that section did not 
 render an oath necessary in all cases, but was a cumulative provision 
 in order to compel the appearance of the party charged, or to hear 
 the case ex parte if he did not appear, and therefore the justices had 
 jurisdiction, (i) 
 
 Owen Hughes was convicted of perjury, committed by him on the 
 hearing of a charge against John Stanley for assault upon him, Owen 
 Hughes, upon which charge the magistrates had convicted John 
 Stanley. On the trial of Owen Hughes for perjury it was objected 
 that he could not be convicted because the magistrates who heard 
 the charge of assault had no jurisdiction, and therefore perjury could 
 not be committed on the hearing. No written information or oath 
 had been made before the issue of the warrant upon which John 
 Stanley had been brought before the magistrates ; but he took no 
 objection to this although he defended himself on the merits, and 
 called a witness on the facts. It was held that, as John Stanley was 
 before justices who were competent to entertain the charge, and had 
 jurisdiction in respect of time and place over the offence, the false 
 oath taken by Owen Hughes before them was perjury, although the 
 warrant was illegal. 
 
 Hawkins, J., in an elaborate judgment, in which Lopes and Lind- 
 ley, JJ., Pollock, B., and Lord Coleridge, C. J., concurred, (,/) said : ' I 
 am of opinion that the conviction was right, and ought to be affirmed. 
 In arriving at this opinion I have assumed as a fact, from the case 
 as stated, that Stanley was arrested and brought before the justices 
 upon as illegal a warrant as ever was issued, — a warrant signed by 
 a magistrate not only without any written information or oath to jus- 
 tify it, but without any information at all. . . . Wrongful, however, as 
 were the proceedings by which Stanley was brought into the presence 
 of the magistrates to answer a charge which up to that moment had 
 never been legally preferred against him ; before those magistrates and 
 in his presence a charge was made over which, if duly made, they 
 had jurisdiction. Upon that charge it was that the hearing pro- 
 
 the management of a room in the said house 14 Cox, C. C. 4. On the trial of an indict- 
 
 for the purpose of betting with persons re- ment for perjury committed on the hearing 
 
 sorting thereto, upon horse races, contrary of an information under the Licensing Act 
 
 to the statute. No information charging for refusing to quit licensed premises, the 
 
 such offence, or summons embodying such licence itself must be produced to show that 
 
 information had been issued or served. the premises were licenced, and therefore that 
 
 Held, by the majority of the Court (Cleasby, the justices had jurisdiction. R. v. Evans, 
 
 B., and Grove, J.), Field, J., dissenting, 17 Cox, C. C. 37. 
 
 that the want of such information or sum- (h) The 24 & 25 Vict. c. 97, s. 62, re- 
 mons rendered the proceedings on the hear- enacts sec. 30 of the former Act. See the 
 ing invalid, and that the conviction thereon clause in the Appendix, 
 must be quashed. Held, further, that a (i) R. v. Millard, Dears. C. C. 166. 
 month's notice of the taking of such pro- (j) R. v. Hughes, 4 Q. B. D. 614. The 
 ceedings was not necessarv before laying an conviction was affirmed by Lord Coleridge, 
 information under 16 & 17 Vict. c. 119, s. 17. C. J., Pollock and Huddleston, BB., Den- 
 Blake v. Beech, 45 L. J. M. C. 111. If, man, Field, Lindley, Manisty, Hawkins, and 
 however, the information is in writing it Lopes, JJ. ; Kelly, C. B., diss. 
 must be produced at the trial. R. v. Dillon,
 
 302 Jurisdiction to Administer Oath. [book ii. 
 
 ceeded ; and in support of that charge it was that the defendant was 
 sworn, and in giving his evidence swore corruptly and falsely. The 
 case expressly rinds that the alleged perjury was committed " on the 
 hearing of a charge against John Stanley at petty sessions for an 
 assault on him, Owen Hughes, and for obstructing him, being a police 
 constable in the discharge of his duty." Comparing this finding with 
 the language of 24 & 25 Vict. c. 100, s. 38, which enacts that " who- 
 soever shall assault, resist, or wilfully obstruct any peace officer in 
 the due execution of his duty shall be guilty of a misdemeanor," I 
 come without hesitation to the conclusion that the charge was that 
 of the indictable offence created by that statute ; and I do not think 
 a doubt could have been suggested as to this had we not been 
 informed in the course of the argument that the justices, in the re- 
 sult, dealt summarily with the case, and convicted Stanley under 
 s. 12 of 34 & 35 Vict. c. 112, of an assault upon Hughes, being a 
 constable in the " execution " of his duty, and sentenced him to six 
 months' imprisonment with hard labour. . . . Now, a charge having 
 been made before them of an indictable offence, committed within 
 their jurisdiction, by a person then bodily present, it seems to me the 
 justices were bound to take cognizance of it. The seventeenth section 
 of 11 & 12 Vict. c. 42, expressly recognizes the legality of depositions 
 of witnesses taken in cases in which persons charged with indictable 
 offences are brought before the justices with or without warrant. Had 
 the justices proceeded upon the defendant's deposition to commit 
 Stanley for trial, instead of convicting him summarily, it is difficult 
 to see what possible objection could have been made to the legality 
 of their proceedings. They did not, however, think fit to adopt that 
 course. They took, it is true, the evidence on oath of the defendant 
 upon the charge for the indictable misdemeanor created by 24 & 
 25 Vict. c. 100, but having done so, they proceeded to convict 
 summarily under a different statute, — 34 & 35 Vict. c. 112, — 
 without, as I recollect, any new information or charge of the lat- 
 ter offence. In short, they convicted him of an offence with which 
 he had never been legally charged. ... In the case before us we 
 have only to determine whether the justices, at the moment when 
 they swore the defendant in the support of the charge which was 
 made, had jurisdiction to hear that charge. Whether they afterwards 
 pronounced a legal or an illegal judgment is immaterial to the 
 present inquiry. Assuming, however, contrary to the view I have 
 taken, that the charge upon which the defendant was sworn was of 
 an offence punishable upon summary conviction under 34 & 35 Vict, 
 c. 112, and that verbal information of that 'offence was made before 
 the magistrate, who, without written information or oath, illegally 
 issued the warrant under which Stanley was brought before the petty 
 sessions, I should still be of opinion that the justices in hearing that 
 charge and taking evidence in support of it were acting within their 
 jurisdiction. There is a marked distinction between the jurisdiction 
 to take, cognizance of an offence and the jurisdiction to issue a par- 
 ticular process to compel the accused to answer it. The former may 
 exist, the latter may be wanting. To found jurisdiction to take cog- 
 nizance of an offence, notwithstanding the dictum of Lord Mansfield 
 in R. v. Fearshire, 1 Leach, C. C. 202, it has been constantly held that
 
 chap, xii.] Of Perjury and Subornation of Perjury. 303 
 
 written information is not necessary. (Per Grose, J., in R. v. Thom- 
 son, 2 T. R. IS, Park, B., in R. v. Millard, 22 L. J. M. ( '. 108 ; per 
 Erie, C. J., in R. v. Shaw, 34 L. J. M. C. 169, and per Crompton, J., 
 in Turner v. Postmaster-General, 5 B. & S. 756 ; see also old forms 
 of conviction, in which the information is set out thus : " A. B. . . . 
 giveth me to understand and be informed," &c.) The information, 
 which is in the nature of an indictment, of necessity precedes the pro- 
 cess ; and it is only after the information is laid that the question as 
 to the particular form and nature of the process can properly arise. 
 Process is not essential to the jurisdiction of the justices to hear and 
 adjudicate , it is but the proceeding adopted to compel the appearance 
 of the accused to answer the information already duly laid, without 
 which no hearing in the nature of a trial could take place (unless 
 under special statutory enactment). If a mere summons is required, 
 no writing or oath is necessary. A bare verbal information is suffi- 
 cient. If a warrant is required, then, and for that purpose only, an 
 oath substantiating the mere information is requisite not only by the 
 provisions in Jervis's Acts, so often referred to, but by the common 
 law, of which it was always a doctrine that a warrant which deprives 
 a man of liberty ought not to issue without oath of the truth of the 
 information. (See R. v. Heber, 2 Barn. 101.) To justify a warrant, 
 
 I am also of opinion that a written information is necessary. In 
 the case of indictable offences it is expressly made so by sec. 8. of 
 
 II & 12 Vict. c. 42. The illegality of the warrant and of the arrest 
 did not, however, affect the jurisdiction of the justices to hear the 
 charge, whether that hearing proceeded upon a valid verbal informa- 
 tion followed by an illegal process, or upon an information for the first 
 time laid in the presence of Stanley, upon which he was then and there 
 instantly discharged. The dictum of Holt, C. J., in R. v. Fuller, 1 Ld. Ray- 
 mond, 509, is an express authority recognizing the legality of a convic- 
 tion upon an information instanter. Stanley might, it is true, had he 
 known of the illegality of his arrest, have demanded his release from it, 
 and prayed for an adjournment to a future day to enable him to pre- 
 pare his defence. This I think it would have been the duty of the 
 magistrates to grant ; see per Crompton J., in Turner v. Postmaster- 
 General, 5 B. & S. 756, and per Blackburn, J., in R. v. Shaw, 34 L. J. 
 M. C. 169. A refusal to do this however would not have destroyed 
 their jurisdiction, though it might possibly have afforded good ground 
 for setting aside the conviction on the ground that they had not allowed 
 the accused sufficient opportunity to answer the charge. Another 
 course might have been pursued, viz., to commence to hear, and if 
 necessary adjourn the further hearing to a future day, a power 
 expressly given by 11 & 12 Vict. c. 43, s. 16. It so happens, however, 
 in the case before us, that neither the magistrate nor Stanley were 
 aware of the illegality of the warrant, and so the hearing proceeded 
 without objection, and as if all things were in order. To use the lan- 
 guage of the case, " The case was gone into of assault and obstruction." 
 Stanley defended himself, and called a witness to show he was not 
 guilty, and, in the result was convicted as I above stated. Possibly that 
 conviction may be open to the objections that the justices had no juris- 
 diction to convict of the offence created by statute 34 & 35 Vict. c. 112. 
 when the only charge made against him was of misdemeanor created
 
 304 Jurisdiction to Administer Oath. [book II. 
 
 by 24 & 25 Vict. c. 100, on the authority of R. v. Brickhall, 33 L. J. 
 M. C. 156; or upon the ground that under the circumstances Stanley 
 had not such opportunity of answering and time to answer as he was 
 in common justice entitled to ; see Blake v. Beech, 1 Ex. D. 320. If the 
 contention on the part of the defendant be correct, then Stanley, even 
 though he had suffered the whole imprisonment, to which he was sen- 
 tenced, would be liable to be tried again and could not plead autrefois con- 
 vict, and if he had been acquitted would have been in no condition to 
 plead autrefois acquit, — two very startling consequences. A flood of 
 authorities might be cited in support of the proposition that no process 
 at all is necessary when, the accused being bodily before the justices, 
 the charge is made in his presence, and he appears and answers it. In 
 2 Hawk. 28, it is said, " It seemeth plain from the nature of the thing 
 that there can be no need of process where the defendant is present in 
 Court, but only where he is absent." In B. v. Stone, 1 East, 649, Lord 
 Kenyon said, " Justice requires that a party should be duly summoned 
 and fully heard before he is condemned; but if he be stated to be 
 present at the time of the proceedings and to have heard all the wit- 
 nesses, and not to have asked for any further time to bring forward his 
 defence, if he had any, this at all times has been deemed sufficient." 
 R. v. Shaw, 34 L. J. M. C. 169, is to the same effect, and appears to me to 
 be decisive of the present case. The defendant in that case was convicted 
 of perjury committed on the hearing of a charge punishable on sum- 
 mary conviction against one Kilshaw, a beer-shop keeper, under 18 & 19 
 Vict. c. 118. The proceedings, not being prescribed by that Act, were 
 regulated as are proceedings for the offence of which Stanley was con- 
 victed, by Jervis' Act, 11 & 12 Vict. c. 43. At the trial no proof was 
 given of any written information warranting a summons ; indeed the 
 evidence showed that the summons was filled up by the magistrate's 
 clerk, and handed to a superintendent of police who took it to the magis- 
 trate, who read and signed it without making any inquiry or requiring 
 any statement of fact, — very like the circumstances of the present 
 case. It was proved that Kilshaw appeared before the justices, that the 
 charge was then made aaginst him, that he answered it, and that the 
 defendant committed perjury in evidence which he gave on his behalf. 
 It was objected that the justices had no jurisdiction to hear the charge 
 against Kilshaw, because there was no information to justify the issu- 
 ing of a summons. Erie, C. J., said, " In my opinion if a party is before 
 the magistrate, and he is then charged with the commission of an 
 offence within the jurisdiction of that magistrate, the latter has juris- 
 diction to proceed with that charge without any information or sum- 
 mons having been previously issued, unless the statute creating the 
 offence imposes the necessity of taking some such step." See also, per 
 Blackburn, J., "I think when a man appears before justices and a 
 charge is then made against him, if he has not been summoned he has 
 good ground for asking for an adjournment ; if he waives that and 
 answers the charge, a conviction would be perfectly good against him, 
 and the witnesses if they swore falsely would be liable to indictment 
 for perjury." To the same effect, are R. v. Millard, 22 L. J. M. G. 108 ; 
 R. v. Berry, 28 L. J. M. C. 86 ; R. v. Simmons, Bell, C. C. 168 ; R. 
 v. Smith, L. R. 1 CO. R. 110; R. v. Fletcher, 40 L. J. M. C. 128 , 
 Turner v. Fostmastcr-General, 5 B. & S. 756, in which latter case the
 
 chap. XII.] Of Perjury and Subornation of Perjury. 305 
 
 defendants were in custody upon a charge of felony, which could not be 
 sustained, but before the magistrate were charged with and convicted 
 of a different offence for which they could not be legally arrested with- 
 out a warrant on information on oath, yet the Court upheld the con- 
 viction. I do not look upon Blake v. Beech, 1 Ex. D. 320, as deciding 
 that the magistrates in the case then before them had no jurisdiction, 
 but only that the conviction ought to be quashed for irregularity under 
 the peculiar circumstances of the case. B. v. Bearce, 3B.&S. 531, only 
 decides that perjury cannot be committed by a witness who is sworn 
 in a nonexisting cause, which is undeniable. That case would have 
 been a strong authority for the defendant if no charge had been made 
 against Stanley before the defendant was sworn. B. v. Scottou, 5 Q. B. 
 493, was the strongest authority cited in favour of the defendant. That 
 case however turned upon the peculiar language of the 6 & 7 Wm. 4, c. 65, 
 s. 9. " provided that before any proceedings shall be had or taken upon 
 such information, the charge shall be deposed to on oath, &c." It does 
 not become necessary therefore to consider how far that case has been 
 affected by more recent decisions. In the course of the argument there 
 was some discussion as to whether the warrant was produced before 
 the justices. In my opinion, whether it was or not is immaterial ; had 
 it been so it would have proved nothing, for it could not in any case be 
 treated as the information. It was the act and process of the magis- 
 trate alone, not the information of the informer, and the recital of an 
 information in it would be no evidence that there was such an infor- 
 mation, in fact : see Stevens v. Clark, per Cresswell, J., 1 Car. & M. 509. 
 I have carefully considered the provisions of Jervis's Acts, 11 & 12 
 Vict. cc. 42 & 43, but I find in them nothing at all militating against 
 the view I have expressed. The sections of those statutes to which 
 our attention was called, which regulate the formalities to be observed 
 when a charge is made against an absent person whose presence it is 
 desired to procure, do not seem to me to have any bearing upon a case 
 like the present where the charge is made in the presence of the 
 accused, who is then and there called upon to answer it, as he lawfully 
 may be, according to the dictum of Holt, C. J., to which I have referred. 
 In such a case it is in my opinion altogether immaterial, so far as the 
 jurisdiction of the justices to hear that charge is concerned, whether 
 the accused was before them voluntarily or otherwise, or on legal or 
 illegal process. I have already pointed out that Stanley may have 
 good grounds for asking that his conviction may be quashed irrespec- 
 tive of the invalid objection raised by the defendant. But this con- 
 viction in my opinion ought to be affirmed.' 
 
 Under the 7 & 8 Vict. c. 101, s. 2, an application for an order in 
 bastardy is to be made to the justices acting for the petty sessional 
 division in which the mother ' may reside ; ' and they have no juris- 
 diction to entertain such an application, unless she does reside within 
 their division, and consequently, if she do not so reside, perjury cannot 
 be committed on such an application, (k) 
 
 {k) R. v. Hughes, D. & B. C. C. 188. In then applied to the justices of that division, 
 this case the mother was delivered in March, Her lodging there was not for any improper 
 and resided with her parents till November. or fraudulent purpose, but because the jus- 
 She then went and lodged at D. in another tices met in the town, and it was more con- 
 petty sessional division for three weeks, and venient for her than to go a distance from 
 VOL. i. —20
 
 306 Jurisdiction to Administer Oath. [book ii. 
 
 Upon an indictment for perjury alleged to have been committed by 
 the prisoner upon the hearing of an application by Martha Humphreys 
 for an order upon him for the maintenance of her bastard child, it 
 appeared that the summons was issued by a magistrate on the personal 
 application of M. Humphreys, who stated, but not on oath, that she 
 had been delivered of a bastard child more than twelve months pre- 
 vious, and that money had been paid by the prisoner for its mainte- 
 nance within twelve months of its birth. The summons alleged that 
 the prisoner had ' paid money for its maintenance within twelve months 
 after its birth,' instead of stating that proof thereof had been made. 
 The prisoner appeared personally in answer thereto. He was also 
 assisted by an attorney. No objection was made to any of the pro- 
 ceedings on which the summons was founded, and the case was gone 
 into on the merits before the stipendiary magistrate, who examined 
 M. Humphreys in support of the application, who proved the payment 
 of money as alleged, and also examined the prisoner in answer thereto, 
 who swore he had never paid her any money. It was objected that, 
 as there had been no proof on oath of money having been paid for the 
 maintenance of the child within twelve months from its birth before the 
 summons was issued, the magistrate had no jurisdiction to hear the case ; 
 but, upon a case reserved, it was held that the prisoner had waived the 
 objection. The proceeding against the putative father is not a proceed- 
 ing in jimnam to punish for a crime, but merely to impose a pecuniary 
 obligation, and the summons is mere process to bring the defendant 
 into court in a civil suit. According to strict regularity, before the 
 summons issued there ought to have been evidence on oath of the pay- 
 ment of the money, although it is not expressly required by the statute 
 to be on oath, as in the case where the complaint is made before the 
 birth of the child. Further, it would have been proper that the sum- 
 mons should have been in the form given by the statute ; but suppos- 
 ing that, if the prisoner had not appeared, the petty sessions could not 
 have lawfully proceeded to hear evidence of the paternity ; or that, if 
 he had appeared, and objected to the regularity of the summons, the 
 objection ought to have prevailed ; yet when he actually appeared, and 
 instead of objecting to the regularity of the summons, asked the Court 
 to give judgment in his favour on the merits, and tendered evidence to 
 absolve himself from liability, he waived any irregularity there might 
 be in the process, and when he had thus submitted himself to the 
 jurisdiction of the Court, the Court had jurisdiction to hear and decide 
 the case. (I) 
 
 Upon an indictment for perjury, it appeared that the perjury 
 had been committed upon the hearing of a second application for a 
 bastardy order, a former application having been heard by the magis- 
 
 her parents' house to the justices' meeting of (/) R. v. Berry, Bell, C. C. 46. Martin, 
 
 the division in which her parents resided. B., dissentiente. The application for the 
 
 After the order she went into service with- bastardy order was made under the 7 & 8 
 
 out returning home. The jury found that Viet. c. 101, and the 8 & 9 Vict. c. 110; R. 
 
 she had no other home than D., and that she v. Fletcher, L. R. 1 C. C. R. 320 ; 40 L. J. 
 
 was residing at D., if in point of law she M. C. 123. See R. v. Siinmonds, Bell, C. C. 
 
 could under the circumstances be considered 168; 28 L. J. M. C. 183; R. Wiltshire, 12. 
 
 to be so. It was held that the justices had Ad. & E. 793; Ii. v. Smith, 11 Cox, C. C. 
 
 jurisdiction to make the order, as her resi- 10 ; R. v- Chugg, 11 Cox, C. C. 558. 
 dence was at D.
 
 chap, xii.] Of Perjury and Subornation of Perjury, 307 
 
 trates and dismissed upon the merits. It was contended that the 
 magistrates were fundi officio after the first application had been dis- 
 missed on the merits, and had no jurisdiction to entertain the second 
 application. But, upon a case reserved after conviction, the judges 
 were unanimously of opinion that the magistrates had jurisdiction to 
 hear the second application and administer an oath. The Court of 
 Queen's Bench had decided that one inquiry on the merits did not 
 make the matter a res judicata ; but even if the previous dismissal 
 were a defence, still the magistrates on the second application had 
 jurisdiction to hear the application and administer an oath, (m) 
 
 An indictment alleged that T. Home was duly licensed to keep a 
 beer-house, and that an information had been laid against him for that he, 
 being duly licensed to keep a beer-house, had it open unlawfully on the 
 morning of Sunday, the 6th of February, 1853, and charged the defend- 
 ant with falsely swearing that he had not been supplied with beer in 
 the house on that morning. Home's licence was for a year, commen- 
 cing on the 11th of May, 1853, but Home was keeping the beer-house 
 on the 6th of February previously. It was objected that the averment 
 that Home was duly licensed on the 6th of February was not proved, 
 and that if he was not so licensed, the justices had no jurisdiction to 
 hear the information. But Crompton, J., held that the justices had 
 jurisdiction generally over the subject of keeping houses for the sale 
 of beer and other liquors open on Sunday ; and that as, in order to 
 establish an offence, it was not necessary to prove that the keeper of 
 the house was licensed, what was sworn on the subject of Home's 
 keeping the house open brought the case within the jurisdiction of the 
 justices, even if it turned out that he was not licensed at the time, (n) 
 
 By 4 Geo. 4, c. 34, s. 2, all complaints which shall arise between 
 masters or mistresses and their apprentices, as to wages, &c, may be 
 heard and determined before a justice of the peace. After an appren- 
 ticeship was over, the former apprentice summoned his late master 
 under this Act for wages alleged to be unpaid, and on the hearing 
 swore falsely. It was held that this was perjury, inasmuch as the 
 magistrate had, at all events, jurisdiction to determine whether the 
 relation of apprenticeship continued or not. (o) 
 
 The 6 & 7 Will. 4, c. 65, s. 9, renders it necessary that an informa- 
 tion under the 1 Will. 4, c. 32, the Game Act, should be verified on the 
 oath of a credible witness before any proceeding is taken upon it for 
 summoning the party accused or compelling his appearance, and if 
 this course has not been adopted, the justices have no jurisdiction to 
 hear the case ; and, consequently, a person giving false evidence on 
 such an occasion is not guilty of perjury, (p) 
 
 The oath must be material to the question depending. 1 — The oath 
 
 (m) R. v. Cooke, 2 Den. C. C. R. 462 ; where it was held that the magistrate had 
 21 L. J. M. C. 136. See R. v. Brisby, 1 no jurisdiction, and consequently that the 
 Den. C. C. 416. prisoner had not committed the offence of 
 
 (n) R. v. Kirton, 6 Cox, C. C. 393 
 ompton, J., refused to reserve the point. 
 
 (o) R. v. Sanders, 1 L. R. C. C. R. 75 
 See R. v. Bacon, 11 Cox, C. C. 540, a case 
 
 perjury. 
 
 Crompton, J., refused to reserve the point. (p) R. v. Scotton, 5 Q. B. 493. See R. v. 
 
 (o) R. v. Sanders, 1 L. R. C. C. R. 75. Western, 10 Cox, C. C. 93. 
 
 American Note. 
 1 In some of the States of America it is matter sworn should he material to the issue. 
 not necessary under the statutes that the Bishop, ii. ss. 1052, 1053.
 
 308 Oath must be Material. [book ii. 
 
 must be material to the question depending- for if it be wholly foreign 
 from the purpose, or altogether immaterial, and neither in any way 
 pertinent to the matter in question, nor tending to aggravate or exten- 
 uate the damages, nor likely to induce the jury to give the readier 
 credit to the substantial part of the evidence, it cannot amount to per- 
 jury, because it is wholly idle and insignificant ; as, where a witness 
 introduces his evidence, with an impertinent preamble of a story con- 
 cerning previous facts, not at all relating to what is material, and is 
 guilty of a falsity as to such facts, (q) 
 
 If it appear plainly that the scope of the question to a witness 
 was to sift him as to his knowledge of the substance, by examin- 
 ing him strictly concerning the circumstances, and he gave a par- 
 ticular and distinct account of the circumstances which afterwards 
 appears to be false ; it seems he is guilty of perjury, inasmuch 
 as nothing can be more apt to incline a jury to give credit to the 
 substantial part of a man's evidence, than his appearing to have 
 an exact and particular knowledge of all the circumstances relating 
 to it. (r) And it is spoken of as a reasonable opinion, that a wit- 
 ness may be guilty of perjury in respect of a false oath concerning 
 a mere circumstance, if such oath have a plain tendency to cor- 
 roborate the more material part of the evidence ; as if, in trespass 
 for spoiling the plaintiff's close with the defendant's sheep, a witness 
 swears that he saw such a number of the defendant's sheep in the 
 close ; and being asked how he knew them to be the defendant's, 
 swears that he knew them by such a mark, which he knew to be the 
 defendant's mark, whereas, in truth, the defendant never used any 
 such mark, (s) And it appears to have been holden not to be neces- 
 sary that it should be shown to what degree the point in which a man 
 is perjured was material to the issue, and that it will be sufficient if 
 thepoint were circumstantially materi al, (t) And still less is it 
 necessary that the evidence be sufficient for the plaintiff to recover 
 upon, since evidence may be very material, and yet not full enough to 
 prove directly the point in question, (u) Where A. advanced money 
 to B. on two distinct mortgages, upon one of which the security was 
 insufficient, and B. assigned the equity of redemption in both to C, 
 who assigned the insufficient estate to an insolvent, and filed a bill 
 against A. to redeem the other, to which bill A. put in his answer, and 
 therein denied having had notice of the assignment to the insolvent ; it 
 
 (q) R. v. Griepe, 1 LottI Raym. 256. spoken to had been in prison. Held, that 
 
 Bac. Ah. tit, Perjury (A). See 2 "Boll. 41, the evidence so last given was material to 
 
 42, 369. Hetl. 97. 1 Hawk. P. C. c. 69, s. 8. the inquiry, and the proper subject of assign- 
 
 (r) See 1 Hawk. P. C. c. 69, s. 8. Upon ments of perjury, inasmuch as those latter 
 
 an indictment for robbery committed on the statements tended to render more probable 
 
 13th of April, between eight and ten o'clock the previous statements made, that the pn- 
 
 at night, a witness for the prisoner swore, soner was at home on the night of the 13th 
 
 not only that the prisoner was at home at of April. R, v. Tyson, 37 L. J. M. 0. 7; 11 
 
 that time, but in answer to the judge said, Cox, C. C. 1. See R. v. Nayktr, 11 Cox, 
 
 that the prisoner had lived in the same C. C. 13; R. v. Alsop, 11 Cox, C. C. 264. 
 house for the two years previous, and that (<?) Bac. Ab. tit. Perjury (A). 1 Hawk, 
 
 during the whole of that time he had not P. C. c. 69, s. 8. See R. v. Gardiner, post 
 been absent from the same house for more (/) R. v. Griepe, 1 Ld. Raym. 256 ; R. 
 
 than three nights together. The last two v. Muscot, 10 Mod. 195. 
 statements were proved to be false, as the (u) R. v. Rhodes, 2 Ld. Raym. 886. 
 
 prisoner for a whole year of the period
 
 chap, xii.] Of Perjury and /Subornation of Perjury. 301* 
 
 was holden that the notice was a material fact upon which perjury 
 might be assigned, (v) 
 
 An indictment for perjury committed before commissioners of taxes 
 on an appeal of W. Hewatt against a surcharge for a greyhound used 
 by him on the 24th of November, averred that it was a material 
 question whether a certain receipt produced by the prisoner on the 
 hearing of the appeal was given to him before the 12th of September 
 then last past, and that the prisoner falsely swore that the receipt 
 was given to him before the said 12th day of September. At the 
 commissioners' meeting, evidence was given that Hewatt and the 
 prisoner were coursing, on the 24th of November, with two grey- 
 hounds, one of which had been Hewatt's, who had no certificate. 
 Hewatt, in support of his appeal against a surcharge for this dog, 
 said that the clog had been sold to the prisoner long before, and called 
 the prisoner as a witness. The prisoner swore that he bought the 
 dog on the 6th of September, and produced a receipt for the purchase- 
 money bearing that date. The surveyor asked him whether the 
 receipt was given at the time of the sale, and he said it was not, but 
 a few days after. On being pressed, he said it was given to him 
 before the 12th of September. The surveyor pointed out to him that 
 the receipt bore date the 18th of November, so that the prisoner must 
 be mistaken ; but the prisoner persisted, and swore positively that 
 it was given him before the 12th of September. Officers from the 
 stamps proved that the paper on which the receipt was written was 
 stamped on the 18th of November, and could not have been issued 
 from the stamp office before that day. It was objected that the 
 materiality of the question as stated in the indictment had not been 
 shown ; that the material question was, whether the dog was the 
 prisoner's or Hewatt's on the 24th of November, the day of the 
 coursing. It had not been disproved that there had been a sale of 
 the dog on the 6th of September ; and if there was, the time of giv- 
 ing the receipt, or even the fact of any receipt having been given, 
 was immaterial. The objection was overruled, and on a case re- 
 served, Lord Abinger, C. B., said, ' The whole matter turned on 
 the credit of the witness, and he tries to support his credit by false 
 evidence. The receipt is to confirm his evidence, and he swears it 
 was given before the 12th. If that were true, the proof would be 
 decisive.' Williams, J., ' The time when this receipt was given is a 
 step in the proof.' Lord Denman, C. J., ' Everything is material which 
 affects the credit of the witness.' Lord Abinger, C. B., ' Every ques- 
 tion in cross-examination which goes to the credit of the witness is 
 material. If a witness were asked, in cross-examination, whether he 
 was in such a place at such a time, and he denied it, that would be 
 material if it went to his credit. In the present case, if they could 
 not have contradicted the prisoner by the date of the stamp, the 
 receipt confirming his evidence would have made out the case before 
 the commissioners, (w) 
 
 The prisoner was indicted for perjury before a court of requests, 
 in a proceeding, under the interpleader clause of the Act establish- 
 
 (v) R. v. Pepys, Peake, N. P R. 138, (w) R. v. Overton, C. &M. 655. 2 M. C. 
 
 Lord Kenyon, C. J. C. R. 263, a. r>. 1842.
 
 310 Oath must be Material. [book ii. 
 
 ing the court, to ascertain whether a certain pig, which had been 
 seized under an execution issued against him on the 26th of Sep- 
 tember, had been sold by him on the 5th of August to his brother. 
 The prisoner had sworn that he had sold the pig to his brother 
 on the 5th of August, and the allegation of perjury was, that the 
 pig was not sold by the prisoner to his brother on the said 5th 
 day of August. It was contended that whether the pig was sold 
 or not on the 5th of August was not the material question ; the 
 material question was whether or not, at any time before the issu- 
 ing of execution, there had been a sale of the pig by the prisoner 
 to his brother. It w T as quite immaterial whether the sale took 
 place on a particular day, if it took place at some time prior to 
 the execution. Maule, J., ' I think that the ultimate question to be 
 decided is one thing, and yet that a material question may be raised 
 upon a matter collateral to that question. I do not at all think that 
 I can confine the law of perjury by making that only perjury which, 
 is material to the only question to be tried, otherwise persons might 
 perjure themselves with impunity. It might be a material question 
 in a case of murder what coloured coat a man had on : the colour of 
 the pig, as I put it, might be most material ; for suppose a person 
 swore that this was a black pig, and another witness swore it was white, 
 it would have been a material question whether the pig was black or 
 white, although the ultimate question would have been whether it 
 was sold at the time when it was alleged to have been sold.' (oc) 
 
 On the hearing of an information against Robinson, under the 1 Will. 
 4, c. 32, s. 30, for committing a trespass in pursuit of game on a close 
 in the occupation of T. Warren, a witness having proved that he saw 
 Eobinson in Warren's field, and saw r him commit the offence there, 
 the prisoner swore, on behalf of Eobinson, that he went with Eobin- 
 son into a lane adjoining the field, and that Eobinson shot into the 
 field, but did not enter it, and that he himself went into the field and 
 fetched off w r hat Eobinson killed. It was contended that this evi- 
 dence was not material ; because Eobinson was equally guilty of an 
 offence within the 1 Will. 4, c. 32, s. 30, whether he went into the 
 field and shot there, or whether he shot from the lane, and the pris- 
 oner in his company went in and brought away the game. But 
 Williams, J., held that the evidence was material, (y) 
 
 An indictment alleged that a cause of divorce or separation was 
 pending in the Court of Arches, which was promoted by E. Kelly 
 against her husband J. Kelly, and that J. Worley was examined 
 as a witness on behalf of E. Kelly, and that interrogatories were 
 exhibited to Worley on behalf of J. Kelly, and that Worley falsely 
 swore that he never passed by the assumed names of Abbott or 
 Johnson, and it was proved that Worley was a witness on the part 
 of the wife in the suit, and that interrogatories on behalf of the 
 husband, by way of cross-examination, were exhibited to him, and 
 
 (x) B. v. Altass, 1 Cox, C. C. 17, A. D. 'We find it was a buck rabbit' — a case well 
 
 1843. A case once occurred at Gloucester illustrating Maule, J.'s remarks, 
 where on an indictment for stealing a rabbit (?/) R. v. Scotton, 5 Q. B. 493, A. D. 
 
 the question turned on whether a rabbit 1844. The question was argued in the 
 
 found in the prisoner's possession was a buck Q. B., but not decided, the case going off 
 
 or doe rabbit, and numerous witnesses were on another point. See ante, p. 307. 
 railed on each side, and the verdict was,
 
 cuap. xii.] Of Perjury and Subornation of Perjury. 311 
 
 that one of the questions put to him, with the view of impeaching 
 his credit, was, ' Have you not passed by the name of Abbott and 
 also of" Johnson?' He answered,'! never passed by the assumed 
 name of Abbott or Johnson.' He had, however, for several years gone 
 by the name of Abbott, and lived with a woman who took that name, 
 and two of his children by her were christened in that name. Lord 
 Denman, C. J., ' I do not think that the evidence of materiality is 
 sufficient. I do not mean to say that a false answer given, under such 
 circumstances as those proved, might not support a charge of perjury ; 
 but I am of opinion that in this case enough has not been shown on 
 the part of the prosecution to connect the false answer with the issue 
 on which the evidence was given. It might have been material, but 
 we cannot clearly see that it was so.' (z) 
 
 Where on a trial for rape the prosecutrix swore that she had 
 never got one Williams to write a letter for her, which was shown 
 to her, and on a trial for perjury in so swearing, it was proved 
 that she had got Williams to write a letter to the person she had 
 charged with the rape, saying, ' I will do all I can to clear you.' ' I 
 should not have went to the police about the matter at all, if I had 
 not been persuaded by ' two persons whom she named, &c. ; it was 
 held that the evidence relating to the writing of this letter was clearly 
 material, (a) 
 
 The prisoner was indicted for perjury committed by him on the 
 hearing of a summons, which he had taken out against the prosecutor 
 before the justices at petty sessions, for using language calculated to 
 incite him to commit a breach of the peace. The language used by 
 the prosecutor was in consequence of the prisoner, as the prosecutor 
 alleged, having kicked and struck a horse, and several witnesses 
 were called who proved this. The prisoner's attention was then 
 called to what the witnesses had said, and he was asked on cross- 
 examination whether it was true ; he, however, denied that he had 
 ever kicked or struck the horse, and the justices thereupon com- 
 mitted him for trial for perjury. Held, that no perjury could be 
 assigned, as the statement by the prisoner that he had never kicked 
 or struck the horse was merely collateral. (&) 
 
 Upon the trial of Doe d. Richard v. Griffiths, a copy of the will of 
 William Joseph was tendered, and on objection to its admissibility, 
 the prisoner, who was then attorney for the lessor of the plaintiff, 
 swore that he had examined the copy produced with the original will, 
 in the registry at Llandaff ; and upon further objection that the origi- 
 nal will was inoperative in respect of a chattel interest, and that, 
 therefore, either the probate ought to be produced or the Act Book be 
 proved, the prisoner further deposed that he had examined the memo- 
 randum at the foot of the copy of the will, with the entry in the Act 
 Book at the same registry. Upon this evidence the judge offered to 
 receive the document in evidence, but the plaintiffs counsel withdrew 
 it. Upon the trial for perjury, it was proved that the defendant had 
 
 (~) R. v. Worley, 3 Cox, C. C. 535, A. d. (a) R. v. Bennett, 2 Den. C. C. 240, 
 
 1849. As no part of the evidence, except A. D. 1851. Talfourd, J., on the trial, and 
 
 the single question and answer, is stated, it approved by the judges on a case reserved 
 
 is impossible to see what this decision on other points, 
 
 amounts to. (b) R. v. Holden, 12 Cox, C. C. 166.
 
 312 Oath mud he Material [book ii. 
 
 not made either of the examinations which he had so deposed to, and 
 he was found guilty of perjury ; but PMe, J., reserved the question, 
 whether the false oath was relevant and material to the issue then 
 being tried, so as to amount to perjury ; as to which the following 
 were the facts : — On the trial of the ejectment, the lessor of the 
 plaintiff claimed to be entitled to a term, which had been granted to 
 William Joseph and Rees Morgan jointly ; and his title was that 
 Morgan had survived Joseph, and assigned the term to Catherine, the 
 widow of Joseph, who married Saunders, and on her marriage made a 
 settlement, under which the term vested in him. The will of Joseph 
 was irrelevant to this title ; but the time of his death was a material 
 fact, in order to prove that Morgan survived him, and proof of the 
 probate of the will of Joseph would thus have been relevant evidence 
 towards establishing the plaintiffs title. The purpose of the plain- 
 tiff's counsel in tendering the evidence, was to clear a doubt respecting 
 the interest of Joseph in the term, which was expected to be raised by 
 the defendant, and after the document was withdrawn, the survivor- 
 ship of Morgan to Joseph was clearly proved by other evidence for 
 the plaintiff; but the purpose for which the document was offered 
 was not stated on the trial of the ejectment. In the registry at Llan- 
 daff' it was the practice to indorse the act of probate on the original 
 will, and the book called ' The Act Book ' contained a daily account 
 of the matters of business completed in the registry, and the memo- 
 randum at the foot of the document in question was a copy of the 
 entry in this book relating to the probate of the will of Joseph, and 
 not a copy of the act of probate indorsed on the original will. It fol- 
 lows that the examination of the document tendered with the entry 
 in the book called ' The Act Book ' at Llandaff, did not render the 
 document legally admissible as an examined copy of the act of probate. 
 For the prisoner, it was contended before the judges, that the question 
 was simply whether if a witness swears that he has examined a docu- 
 ment, not receivable in evidence, with a certain book, that can be said 
 to be material to the issue ? The time of Joseph's death was in issue ; 
 how could the fact that the witness swore that he had examined a 
 paper, not receivable in evidence, with a certain book, be material to 
 the issue then being tried ? It is not enough that the evidence has 
 relation to the matter in issue ; it must be material to the issue. It 
 was contended, when the defendant was tried, that what he had sworn 
 was material for the jury, who were to act on the evidence before 
 them ; and, secondly, that it was material for the judge, who was to 
 say whether it was to be put to the jury or not. But it could not Vie 
 material for the jury ; for it was withdrawn from their consideration, 
 and they could not legitimately act upon it , and here the judge was 
 not a judge of fact. This evidence was not on any issue of fact which 
 the judge had to try. It was merely evidence to be given to the jury 
 through the judge. Lord Campbell, C. J., ' I am of opinion that the 
 conviction was right. There was false swearing in a judicial proceed- 
 ing. How can it be said not to have been material ? It was necessary 
 to prove that Joseph died before Morgan. Although the fact of 
 Joseph's death had been proved by parol testimony, if evidence was 
 given to show that probate had been granted of Joseph's will while 
 Morgan was still living, it would have been material in corroboration.
 
 chap. XII.] Of Pet 'jury and Subornation of Perjury. 313 
 
 With a view to have the copy of the will received in evidence, the 
 defendant swore falsely that he had examined the paper produced 
 with the original will at Llandaff, and the entry on it with the entry 
 in the Act Book; and thereupon the judge said, I will admit it, and 
 if it had been read, it would have gone to the jury with the resl of 
 the evidence in the case. Afterwards the document is withdrawn, 
 but that cannot purge the false swearing committed by the defendant. 
 It has been said that if the judge were wrong in admitting the docu- 
 ment in evidence, the defendant could not be convicted, making the 
 offence of perjury depend upon whether a judge were right or wrong 
 in his decision on a (question of law, and upon the decision of some 
 nice point in a bill of exceptions, which might ultimately go to the 
 House of Lords. We are all of opinion, as the evidence was given in 
 a judicial proceeding, with a view to the reception in evidence of a 
 document, which was material, and as that evidence was false, that 
 all the ingredients necessary to constitute the crime of perjury are 
 present, (c) 
 
 Where a count stated that it was a material question whether a 
 bond was obtained by the fraud of the prisoner, and that the pris- 
 oner falsely swore that he read over and explained it to the obligor ; 
 it was objected that the omission to read over the bond was no evi- 
 dence of fraud, and therefore that the statement was not material ; 
 but Erie, J., overruled the objection, as the reading over the bond 
 would be strong evidence to negative fraud, (d) 
 
 The prisoner was indicted for' having falsely sworn before justices, 
 on a charge against the prosecutor for stealing three books of account, 
 that she saw him destroy another book of accounts, the prosecutor 
 being also charged with embezzlement ; and Watson, B., held that the 
 evidence was not material. Its being calculated to influence the 
 minds of the magistrates would not be sufficient. It would be merely 
 bad conduct in one instance, inducing a probability of bad conduct in 
 another. On the charge for embezzlement it would have been mate- 
 rial evidence, (c) 
 
 An indictment alleged that a cause came on to be tried at the 
 Assizes, and that the cause and all matters in difference between 
 the parties were referred to an arbitrator, and assigned perjury be- 
 fore him as to the signature of a paper. The arbitrator said that 
 it was impossible for him so to distinguish between the matters in 
 the cause and the other matters in difference between the parties, 
 as to say definitely to which head the questions put to and the 
 answers given by the prisoner referred, and there was no other evi- 
 dence on the point. Gurney, Q. C, ' In all these cases it is necessary 
 to show that the matter alleged to be falsely sworn was material, 
 that cannot be done in this case without proof that it was niate- 
 
 (c) R. v. Phillpotts, 2 Den. C. C. 302. material to the. issue being tried.' In P.. v. 
 
 3 C. & K. 135, A. d. 1851. In the course Gibbon, infra, Pollock, C. B., said that 
 
 of the argument, Maule, J., said, ' Here the there was a great deal of very good sensi' 
 
 defendant by means of a false oath endeav- in Lord Campbell's judgment in this case. 
 
 ours to have a document received in evi- (d) R. v. Smith, 1 F. & F. 98, A. r. 
 
 dence ; it is, therefore, a false oath in a 1858. 
 
 judicial proceeding ; it is material to that (c) R. v. Southwood, 1 F. & F. 356, 
 
 judicial proceeding ; and it is not necessary A. D. 1858. 
 that it should have been relevant and
 
 314 Oath must be Material. [book ii. 
 
 rial either to the action or to the other matters in difference. 
 The evidence failing to show this distinctly, the defendant must be 
 acquitted.' (/) 
 
 An indictment for perjury, committed before a coroner while 
 holding an inquest on the body of J. Oonolly, alleged that it was 
 a material question whether the deceased, the prisoner, or another 
 person had drunk any intoxicating liquor after they had left a 
 police barrack and before they had arrived at a guard-room, and 
 that the prisoner falsely swore that none of them had tasted 
 any intoxicating liquor during that interval. This statement was 
 clearly shown to be false, but there were no grounds for suppos- 
 ing that the deceased came to his death from anything except 
 from the effects of having been exposed to the night air. It was 
 objected that the matter so falsely sworn was not material, and 
 Monahan, C. J., was inclined so to hold ; but he left the question of 
 meteriality to the jury, and they convicted ; and, upon a case reserved, 
 it was held that the evidence was material. It was the duty of the 
 coroner to inquire into all the circumstances attending, or which 
 might have caused, the death of the person upon whom the inquiry 
 was held. That being so, it at once became material to ascertain 
 whether or not death had not been caused to some extent by the 
 deceased having been tippling in a public-house, and therefore in a 
 state to render it more probable that he should have lost his way. It 
 was material for the coroner to ascertain, not only the actual cause 
 of death, as murder, fclo de sc, or otherwise, but also all the circum- 
 stances attending it, and therefore it was a necessary part of his duty 
 to ascertain the way in which the deceased spent the evening before 
 his death. (#) 
 
 An indictment for perjury alleged that the prisoner falsely swore 
 at a petty sessions that D. Eees was the father of her illegitimate 
 child, and that her master, who was the uncle of D. Rees, had prom- 
 ised to raise her wages if she would swear the child to a man other 
 than the said D. Rees, and if she would do so he would permit her 
 to lie in at his house. Martin, B., expressed a strong opinion that this 
 evidence as to the promises made to her by her master was not suffi- 
 ciently material to the issue before the justices so as to amount to 
 the crime of perjury; but he left the case to the jury, (h) 
 
 The prisoner was indicted for perjury alleged to have been committed 
 by him on the hearing of an application of M. Humphreys, the mother 
 of a bastard child, for an order in bastardy to be made upon the pris- 
 oner. Upon the hearing M. Humphreys swore that on the day 
 after the birth of the child the prisoner paid her £1 Is. M., and that 
 he paid her a weekly sum for several weeks after ; in answer thereto 
 
 (/) R. v. Ball, 6 Cox, C. C. 360, A. D. cause, and to the other matters referred, 
 
 1854. Gurney, B., is far too good a criminal and yet, according to this report the evidence 
 
 lawyer to have made such a decision as would not have been material. C. S. G. 
 this, and I have the best authority for say- (g) R. v. Courtney, 7 Cox. C. C. Ill, 
 
 ing that he never did so decide. Probably A. r>. 1856. 
 
 the evidence failed to show that the evidence (h) R. v. Owen, 6 Cox, C. C. 105, a. d. 
 was material in any respect upon the hear- 1852. The report does not show how any 
 ing of the matters referred. It is obvious such evidence was admitted before the just- 
 that the paper in this case might have been ices. Acquittal, 
 material both to the matter in issue in the
 
 chap, xii.] Of Perjury and Subornation of Perjury. 315 
 
 the prisoner swore that he never paid M. Humphreys any money at 
 all upon any account whatsoever, and on this statement perjury was 
 assigned ; it was objected that this assignment of perjury was upon a 
 matter immaterial on the hearing ; but, upon a case reserved, it was 
 held that it was clearly material ; for it was necessary to prove at the 
 hearing the payment of the money ; and further, the payment of the 
 money for the maintenance of the child was corroborative evidence of 
 the paternity. {%) 
 
 Brennan, being charged before justices of the peace with a robbery 
 in a railway carriage, cross-examined the prosecutor after he had 
 given his evidence in support of the charge, as to whether he had 
 been in company with himself and the prisoner at Manchester on the 
 previous day, and then called the prisoner, who swore that the prose- 
 cutor had accosted him, whilst in company with Brennan, and proposed 
 that he should assist him to break into his uncle's house ; and it was 
 held that this evidence was in a matter immaterial to the inquiry 
 before the justices. (j) 
 
 Justices have no right to inquire into the truth of a charge of libel 
 preferred before them, or to hear any other justification. If publica- 
 tion is proved, they are bound to commit. Where, therefore, an 
 indictment was preferred for perjury alleged to have been committed 
 in the course of the cross-examination of a witness for the defendant 
 on a charge of libel before magistrates, the object of which was to 
 prove the truth of the libel, such cross-examination not being upon 
 matter material to the issue, the Court directed an acquittal, (k) 
 
 The prisoner was indicted for falsely swearing on the hearing of an 
 application in bastardy, that he had had connection with the mother 
 of the child. The mother in support of the application had made a 
 deposition before the magistrates, and she was then cross-examined as 
 to whether she had not had connection with the prisoner in the Septem- 
 ber previous to the birth of the child, which was on the 29th of March, 
 and she denied it. The prisoner was called on behalf of the alleged 
 father, and swore that he had had connection with her as imputed by 
 the question put to her. It was objected that the evidence given by 
 the prisoner was not material to the issue raised on the application 
 for the affiliation order, as the question put to the mother as to her hav- 
 ing had connection with the prisoner merely went to affect her credit, 
 and her answer to it ought to have been regarded as conclusive, and 
 the evidence given by the prisoner was inadmissible. But, on a case 
 reserved, it was held that the prisoner was liable to be convicted. ' It 
 is now clearly established that a cross-examination going to a witness's 
 credit is material, and that perjury may be assigned upon it.' (I) Here, 
 therefore, the mother might have been indicted if she had sworn falsely 
 on cross-examination upon this matter. ' Although it did not refer to 
 the main issue, which was the paternity of the child, it had a bearing 
 
 (i) R. v. Berry, Bell, C. C. 46, a. d. should not be looked upon as any authority. 
 
 1859. It was only my impression of what was 
 
 (j) R. v. Murray, 1 F. & F. 80, A. D. material formed hastily on circuit.' 
 1858. Martin, B., after consulting Byles, (k) R. v. Townsend, 10 Cox, C. C. 356 ; 
 
 J. This case seems to he overruled bj' R. M. Smith, J. 
 
 v. Gibbon, infra. On its being cited in (/) Per Crompton, J., R. v. Gibbon, 
 
 that case, Martin, B., said, 'That case infra.
 
 316 Oath must be Material. [book ii. 
 
 upon what was indirectly in issue ; namely, how far the complainant 
 was deserving of credit.' (m) ' Then, as the question only affected her 
 credit, as soon as she had answered it, all should have been bound by 
 her answer. This is an established rule of our law. Notwithstanding 
 that, the magistrates admitted the evidence of the prisoner, which 
 legally was inadmissible. Then, although not legally admissible,, yet, 
 being admitted, it had a reference to what was indirectly in issue, — 
 the credibility of the complainant. The evidence having been admitted, 
 although wrongly, R. v. Phillpotts (n) is an authority directly in point 
 that perjury may be assigned upon it. Although the evidence was 
 open to objection, yet it does not lie in the witness's mouth to say that 
 it was not a question on which he was bound to speak the truth, (o) 
 
 Upon an indictment for perjury in an answer to a bill filed against 
 the defendant in chancery, stating that the defendant promised to pay 
 Martin £1,000 as a marriage portion, when he was about to marry the 
 defendant's niece : the defendant, by his answer, insisted that as there 
 was no promise in writing, he was entitled to the benefit of the Statute 
 of Frauds, but as to the fact, denied that he had ever made any such 
 promise, on which denial perjury was assigned. Lord Kenyon, C. J., 
 said, that ' he thought this was not such a material fact as would sup- 
 port the indictment. This promise was absolutely void, and, supposing 
 it in fact to have taken place and acknowledged by the defendant, could 
 not be enforced either at law or in equity ; that Court had no power 
 to decree a performance of it. It might be a false swearing, but did 
 not amount to what the law denominated perjury.' (p) 
 
 So where upon an indictment for perjury, alleged to have been 
 committed in an answer to a bill filed in chancery, it appeared 
 that the bill was filed against the defendant and Robinson, in order 
 
 (m) Per Cockburn, C. J., R. v. Gibbon, son, B., in Verry v. Watkins, 7 C. & P* 
 
 infra. 308, left such evidence to the jury in miti- 
 
 {n) Supra. gation of damages, he first left the question 
 
 (o) R. v. Gibbon, L. & C. 109, by eleven to them whether the defendant was the 
 
 judges, Crompton, J., and Martin, B., father of the child, and my recollection of 
 
 doubting. It was stated in the argument the case (in which I was counsel for the de- 
 
 that the child was a full-grown child. The fendant) is that the evidence was given 
 
 cases where it has been held on a trial for chiefly with a view to that question. And 
 
 rape that the woman may be proved to have in Grinnell v. Wells, Gloucester Spr. and 
 
 had connection with other men, were dis- Sum. Ass. 1843, the mother on the first 
 
 tinguished by Williams, J., on the ground trial swore to connection with the defendant 
 
 that ' the character of the prosecutrix in on one occasion only ; and on the second 
 
 those cases may be so mixed up with the trial, before Williams, J., evidence of an 
 
 facts as to be material, not only to her alibi was given, and also evidence that the 
 
 credit, but to the cause.' By the counsel for mother had had connection with others at 
 
 the prosecution they were distinguished on such a time that one of them might have 
 
 the ground that voluntary intercourse with been the father of the child ; and this evi- 
 
 others was very material on the question dence was given only with a view to the 
 
 whether she consented ; and this distinction paternity of the child. The new trial had 
 
 was not denied by any judge. The cases been obtained on the affidavit (amongst 
 
 where in an action for seduction such evi- others) of the defendant expressly negativ- 
 
 dence has been held admissible, were dis- ing any connection with the mother. C. 
 
 tinguished on the ground that such evidence S. G. 1 
 
 affected the damages. But although Alder- (/?) R. v. Benesech, Peake, Add. C. 93. 
 
 American Note. 
 
 1 See the American case of S. v. Brown, 79 N. C. 642, cited Bishop, vol. ii. ss. 1035, 
 1036.
 
 chap, xii.] Of Perjury and Subornation of Perjury '. 317 
 
 to compel the specific performance of a contract for the purchase of 
 a freehold estate, and it was not stated in the bill that the contract 
 was in writing, but it was alleged that the defendants had frequently 
 since the contract was entered into, admitted that the plaintiffs were 
 interested in the purchase; and the defendants in their answer pleaded 
 that the alleged agreement, not being in writing, was within the fourth 
 section of the Statute of Frauds, and could not be enforced, and also 
 denied the agreement as set forth in the bill, and denied that they ever 
 admitted that the plaintiffs were interested in the purchase as stated : 
 and upon these denials perjury was assigned. It was admitted that 
 the agreement was not in writing, and that there was not any memo- 
 randum or declaration of trust respecting it. It was objected that the 
 alleged perjury was not material or relevant to the matter in issue in 
 chancery ; the agreement not being in writing, the defendant relied on 
 the Statute of Frauds as a good ground of defence. The denial there- 
 fore of an agreement which the Court had no power to enforce was 
 immaterial and irrelevant to the investigation of the several matters 
 in the bill. The counsel for the prosecution cited Bartlett v. Pickers- 
 gill, (q) where a person was convicted of perjury for the denial of a 
 parol agreement for the purchase of an estate, which parol agreement 
 a court of equity had refused to enforce. Abbott, C. J., ' It does not 
 appear from the short statement of the case which has been cited, and 
 which is not very distinctly reported, whether the Statute of Frauds 
 was there pleaded and relied on. But in the present case the defend- 
 ants have in their answer pleaded the statute, and insisted that this 
 agreement not being in writing, and relating to the sale of land, is 
 within the fourth section of that statute, and cannot be enforced. As 
 a judge of a court of common law, it is competent for me to form my 
 opinion upon the construction of this statute, although I cannot be 
 presumed to know how a court of equity might deal with it. The 
 statute, for the wisest reasons, declares that agreements of this descrip- 
 tion shall not be enforced unless they are reduced into writing. These 
 defendants, therefore, having insisted upon the statute in their answer, 
 the question is, whether under such circumstances the denial of an 
 agreement, which by the statute is not binding upon the parties, is 
 material ; I am of opinion that it was utterly immaterial. It is neces- 
 sary that the matter sworn to and said to be false should be material 
 and relevant to the matter in issue: the matter here sworn is in 
 my judgment immaterial and irrelevant, and the defendant must lie 
 acquitted.' (r) 
 
 But where an indictment stated that a bill was filed in chancery 
 against the defendant, stating an agreement to purchase certain wheat, 
 to be paid for by draft at three months, which agreement was not 
 reduced into writing, and that afterwards a bought note was delivered 
 to the defendant, which note did not contain fully the terms of the 
 agreement; that the defendant brought an action and recovered a 
 verdict ; and that he was enabled to obtain such verdict by reason of 
 his fraudulently concealing the true terms of the agreement, and the 
 bill prayed that one of the terms of the contract might be declared 
 
 (?) 4 Burr. 2255. 4 East, 577, in (r) R. v. Dunston, R. & M. N., P. K. 
 
 notis. 109.
 
 318 Oath must be Material. [book 11. 
 
 to be that the purchase-money should be paid by a bill of exchange, 
 payable three months after date; and the defendant by his answer 
 denied the parol agreement stated in the bill, and the bill was dis- 
 missed, and the denial by the defendant was the subject of the indict- 
 ment for perjury, — it was contended that the indictment could not 
 be sustained. The only legitimate evidence of the contract was the 
 bought and sold notes. The contract by parol was void by the Stat- 
 ute of Frauds, and a false answer to a bill for the discovery of such a 
 contract w T ould not subject a person to the indictment for perjury; 
 and R. v. Dunston(s) was relied upon. Coleridge, J., ' In that case the 
 bill in chancery was to enforce the performance of a parol contract, 
 which could not be enforced by reason of the Statute of Frauds ; and 
 the case of E. v. Benesech (t) proceeded on the same ground. Though it 
 is true that a party cannot vary the terms of a written contract by 
 parol evidence, he may show by such evidence that he was induced to 
 sign the written contract inadvertently and by fraud. In this case 
 the object of setting up the parol terms of the contract is for the pur- 
 pose of avoiding the contract on the ground of fraud.' ' I think that 
 the principle, that parol evidence is inadmissible to contradict or 
 vary the terms of a written contract, does not apply where the object 
 of that evidence, as in this case, is to impeach the transaction on the 
 ground of fraud. I think that the assignment of perjury on the denial 
 in the answer of the parol terms, which the bill prayed to have estab- 
 lished, is material and relevant ; and I think therefore that the objec- 
 tion cannot be sustained.' (u) 
 
 Perjury may be committed on the trial of an indictment, which is 
 afterwards held bad upon a writ of error. An indictment charged the 
 defendant with having committed perjury on the trial of a previous 
 indictment for perjury, upon which a person had been convicted and 
 sentenced, but in which the judgment was reversed on a writ of error, 
 on the ground that the assignment of perjury was insufficient ; (v ) and 
 it w r as objected that the evidence of the defendant never could have 
 been material, as the former indictment was held bad upon a writ of 
 error ; but the objection was overruled, on the ground that, whether 
 a witness had committed wilful and corrupt perjury or not, could not 
 depend on the validity in point of form of the indictment as to which 
 he gave evidence, (w) 
 
 But it must be observed that any false oath is punishable as 
 perjury which tends to mislead a court in any of their proceedings 
 relating to a matter judicially before them, though it in no way 
 
 (.9) Siipra. Hawk. P. C. c. 69, s. 4, cited, ' If judgment 
 
 (f.) Peake Add. C. 93. be arrested in a civil action for a defect in 
 
 (u) R. v. Yates, C. & M. 132. the declaration, it has never been said that 
 
 (v) See E. v. Burraston, 4 Jurist. 697, see that circumstance would prevent a witness, 
 
 post. who had been guilty of false swearing at the 
 
 (w) R. v. Meek, 9 C. & P. 513, Williams, previous trial, from being indicted for per- 
 
 J., Mullett v. Hunt, 1 Cr. & M. 752, was jury ;' per Pollock, C. B., R. v. Cooke, 2 
 
 cited in support of the objection. See also Den. C. C. 462. 1 
 
 Davis v. Lovell, 4 M. & W. 678. See 1 
 
 American Note. 
 1 This appears to be so also in America. See C. v. Tobin, 108 Mass. 426.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 319 
 
 affect the principal judgment which is to be given in the cause (x) ; 
 as where a person who offers himself to be bail for another wil- 
 fully swears that he is a subsidy man and assessed at four pounds 
 in the subsidy book, when he is not a subsidy man at all. (y) So also 
 perjury may be committed in evidence given to the judge in order 
 that he may decide whether a document is admissible, (z) 
 
 An indictment for perjury alleged that the defendant, as executrix 
 of her husband, was plaintiff in a cause in the county court, and that 
 she falsely swore that she had never been tried at the Central Criminal 
 Court for any offence, and had never been in custody at the Thames 
 police station ; it was proved that she had been in custody at the 
 station, and had been tried at the Central Criminal Court, and 
 acquitted by the direction of the judge ; the cause in the county court 
 was an action for goods sold by the testator, and was tried by the 
 judge without a jury; and the verdict was for the plaintiff; and the 
 evidence in question was given by the plaintiff' during her cross- 
 examination ; it was objected that the evidence given by the defend- 
 ant was not material. It could not be material on the question 
 whether the testator in his lifetime sold the goods for which the 
 action w T as brought ; and as the trial in the county court was before 
 a judge, and not before a jury, it did not weigh as to the result of that 
 trial whether she had been tried or not ; and as giving a true answer 
 that she had been acquitted by the direction of the judge would have 
 equally cleared her character, it could not have been material that 
 she denied having been taken into custody and tried on that charge. 
 Lord Campbell, C. J., ' I think that there is evidence of materiality/ 
 and (the counsel for the prisoner having addressed the jury) he left 
 that question to the jury, and directed them to consider whether her 
 evidence on the two points in question might not influence the mind 
 of the judge of the county court in believing or disbelieving the other 
 statements she made in giving her evidence, (a) 
 
 But where on an indictment for perjury before a coroner a questio 
 was raised as to the materiality of the matter sworn, and that question 
 was left to the jury, who convicted ; it was held, on a case reserved, 
 that the matter was material : and all the judges except one, after fully 
 considering the preceding case, expressed a very strong opinion that it 
 was for the judge to determine whether the matter was material or 
 not. {b) ■ 
 
 
 (r) 1 Hawk. P. C. c. 69, s. 3. R. v. said he never could understand R. v. Lavey, 
 
 Mullany, 34 L. J. M. C. Ill, L. & C. 593, 'unless on the ground that there was a 
 
 where a defendant on trial of a plaint in question whether the defendant in the 
 
 a county court, wilfully, corruptly, and County Court action meant to plead or 
 
 falsely, swore his name was Edward and not admit the claim. That point having been 
 
 Bernard. ascertained, the question of materiality was 
 
 (y) Royson's case, Cro. Car. 146. no longer for the jury. ' 
 (z) R. v. Phillpotts, ante, p. 313. (6) R 1 . v. Courtney, 7 Cox, C. C. Ill, 
 
 (a) R. v. Lavey, 3 C. & K. 26 A. D. a. d. 1856. Ball, J.,' doubted. It is to be 
 
 1850. In every previous case materiality observed that in this case all the judges 
 
 has been treated as a question of law, and h<dd the evidence to be material; they did, 
 
 it is submitted that it is clearly so ; other- therefore, treat the question as a matter of 
 
 wise all the cases in which it has been held law. If they had held it to he a question 
 
 that an averment of materiality is unneces- for the jury, the question would have been 
 
 sary where the materality appears on the whether the evidence warranted the verdict. / 
 
 face of the indictment, are erroneous. In See this case more fully stated, ante, p. 314. 
 R. v. Gibbon, L. & C. 109, Chaunell, B.,
 
 320 Oath must be Material [book ii. 
 
 An indictment alleged that on the hearing of an application for an 
 order in bastardy, it became material to inquire whether the prisoner 
 had ever kissed the prosecutrix or had familiarity with her ; the 
 prisoner, bemg examined in answer to the evidence given by the prose- 
 cutrix, swore that he never had any connection or familiarity with her, 
 and never kissed her. It was objected that the evidence was not 
 material, as it was far too wide in the form in which it was given. 
 Wightman, J., consulted Erie, C. J., and declined to stop the case, and 
 after pointing out the necessity for two witnesses to prove the false- 
 hood of the prisoner's evidence, told the jury : ' Then the question 
 arises whether the parts of his evidence which are assigned as perjury 
 were material to the investigation. It seems to me that they were so, 
 but that is for you. Were they material and wilfully false ? ' (c) 
 
 It should be observed, that a man may be as much perjured by an 
 oath taken by him in his own cause, either in an answer in chancery, 
 or in an answer to interrogatories concerning a contempt, or in an 
 affidavit, &c, as by an oath taken by him as a witness in the cause of 
 another person, (d) But the oath must be taken by a person sworn to 
 depose the truth ; and a false verdict does not come under the notion 
 of perjury, because the jurors do not swear to depose the truth, but 
 only to judge truly of the depositions of others, (c) 
 
 A further point of general application may be mentioned, namely, 
 that it appears not to be important whether the false oath were 
 credited or not, or whether the party in whose prejudice it was taken 
 were in the event any ways damaged by it; for the prosecution is 
 not grounded on the damage to the party, but on the abuse of public 
 justice. (/) 
 
 In some cases, where a false oath has been taken, the party may 
 be prosecuted by indictment at common law, though the offence 
 may not amount to perjury. Thus it appears to have been holden, 
 that any person making or knowingly using any false affidavit taken 
 abroad (though a perjury could not be assigned on it here) in order to 
 mislead our courts of justice, is punishable by indictment, as for mis- 
 demeanor ; and Lord Ellenborough, C. J., said, ' that he had not the 
 least doubt that any person making use of a false instrument in order 
 to pervert the course of justice was guilty of an offence punishable by 
 indictment.' (g) 
 
 statutes relating to perjury. — We may now proceed to consider the 
 5 Eliz. c. 9, and other statutes which relate to the offence of perjury. 
 
 By the 5 Eliz. c. 9, (h) s. 3, ' all and every such person and persons 
 which shall unlawfully and corruptly procure any witness or wit- 
 nesses by letters, rewards, promises, or by any other sinister and 
 unlawful labour or means whatsoever, to commit any wilful and cor- 
 
 (c) R. v. Goddard, 2 F. & F. 361, a. d larceny sworn that he had not given the 
 1861. No authority was referred to in this stolen property to Pitt, but he was contra- 
 case. Acquittal. dieted by other witnesses, and the jury dis- 
 
 (d) 1 Hawk. F. C. c. 69, s. 5. Bac. believed him, and acquitted Pitt, and he 
 Abr. tit. Perjury (A). was convicted of perjury in so swearing, 
 
 (c) Id. ibid. and transported for seven years. C. S. G. 
 
 (/) 1 Hawk. P. C. c. 69, s. 9 Bac. (g) Omealy v. Newell, 8 East, 364. 
 
 Abr. tit. Perjury (A). In R. v. Nicholls, (h) Made perpetual by the 29 Eliz. c. 5, 
 
 Gloucester Sum. Ass. 1838, cor. Patteson, J., s. 2, and 21 Jac. 1, c. 28', s. 8. 
 che prisoner had on the trial of one Pitt for
 
 chap. XII.] Of Per jury and Subornation of Perjury. 321 
 
 rupt perjury, in any matter or cause whatsoever now depending, or 
 which hereafter shall depend in suit and variance, by any writ, action, 
 bill, complaint, or information, in any wise touching or concerning any 
 lands, tenements, or hereditaments, or any goods, chattels, debts, or 
 damages, in any of the courts before mentioned, (i) or in any of the 
 Queen's Majesty's courts of record, or in any leet, view of frank-pledge 
 or law-day, ancient demesne court, hundred court, court baron, or in 
 the court or courts of the stannary in the counties of Devon and 
 Cornwall ; or shall likewise unlawfully and corruptly procure or 
 suborn any witness or witnesses, which shall be sworn to testify in 
 perpetuam rei memoriam ; that then every such offender or offenders 
 shall for his, her, or their said offence, being thereof lawfully convicted 
 or attainted, lose and forfeit the sum of forty pounds.' 
 
 Sec. 4. ' If it happen any such offender or offenders, so being con- 
 victed or attainted as aforesaid, not to have any goods or chattels, 
 lands, or tenements, to the value of forty pounds, that then every 
 such person so being convicted or attainted of any of the offences 
 aforesaid, shall for his or their said offence suffer imprisonment by 
 the space of one half-year, without bail or mainprize, and to stand 
 upon the pillory (J) the space of one whole hour, in some market 
 town next adjoining to the place where the offence was committed, in 
 open market there, or in the market town itself where the offence 
 was committed.' 
 
 Sec. 6. ' If any person or persons, either by the subornation, unlawful 
 procurement, sinister persuasion, or means of any others, or by their 
 own act, consent, or agreement, wilfully and corruptly commit any 
 manner of wilful perjury, by his or their deposition m any of the courts 
 before mentioned, or being examined ad perpetuam rei memoriam, that 
 then every person or person so offending, and being thereof duly con- 
 victed or attainted by the laws of this realm, shall for his or their said 
 offence lose and forfeit twenty pounds, and to have imprisonment by 
 the space of six months without bail or mainprize. 
 
 Sec. 7. ' If it happen the said offender or offenders so offending not 
 to have any goods or chattels to the value of twenty pounds, that then 
 he or they to be set in the pillory (k) in some market-place within the 
 shire, city, or borough, where the said offence shall be committed, by 
 the sheriff or his ministers, if it shall fortune to be without any city 
 or town corporate ; and if it happen to be within any such city or 
 town corporate, then by the said head officer or officers of such city or 
 town corporate, or by his or their ministers, and there to have both 
 his ears nailed.' 
 
 The statute further enacts that one moiety of the said forfeitures 
 shall be to the King, and the other moiety to such person as shall 
 
 (i) Viz. (as in sec. 1) ' the King's Courts concerning the title, right, or interest of 
 of Chancery, the Star Chamber, the White- any lands, tenements, or hereditaments." 
 hall, or elsewhere within any of the King's (j ) The 1 Vic. c. 23, abolishes the pun- 
 dominions of England or Wales, or the ishment of pillory in all cases, but does 
 marches of the same, where any person or not 'change, alter,' or affect any punishment 
 persons have or from thenceforth should whatsoever which may now by law be in- 
 have authority by virtue of the King's com- flicted in respect of any offence, except only 
 mission, patent, or writ, to hold plea of the punishment of the pillory, 
 land, or to examine, hear, or determine any (k) See note, siqini. 
 title of lands, or any matter of witnesses 
 
 vol. i. — 21
 
 322 Perjury by Statute. [book ii, 
 
 be grieved, hindered, or molested by reason of any of the offences 
 before mentioned, that will sue for the same, &c. ; and that as well 
 the judge and judges of every such of the said courts where any 
 such suit shall be, and whereupon any such perjury shall be committed, 
 as also the justices of assize and gaol delivery, and justices of peace 
 at their quarter sessions, both within the liberties and without, may 
 inquire of, hear, and determine all offences against the said Act. (/) 
 And it is provided that the said Act shall no way extend to any 
 spiritual or ecclesiastical court, but that every such offender, as shall 
 offend in term as aforesaid, shall be punished by such usual and ordi- 
 nary laws as are used hi the said courts. (?/(-) And it is also provided 
 that the said statute shall not restrain the authority of any judge 
 having absolute power to punish perjury before the making thereof ; 
 but that every such judge may proceed in the punishment of all 
 offences punishable before the making of the said statute, in such wise 
 as they might have done and used to do to all purposes, so that they 
 set not on the offender less punishment than is contained in the said 
 Act. (/i) 
 
 An important statute relating to the punishment of perjury is 
 the 2 Geo. 2, c. 25, s. 2, which, in order the more effectually to deter 
 persons from committing wilful and corrupt perjury, or subornation of 
 perjury, enacts, ' that besides the punishment already to be inflicted 
 by law for so great crimes, it shall and may be lawful for the Court 
 or judge, before whom any person shall be convicted of wilful and 
 corrupt perjury, or subornation of perjury, according to the laws now 
 in being, to order such person to be sent to some house of correction 
 within the same county for a time not exceeding seven years, there to 
 be kept to hard labour (o) during all the said time, or otherwise to be 
 transported to some of his Majesty's plantations beyond the seas, for 
 a term not exceeding seven years, (p) as the Court shall think most 
 proper ; and thereupon judgment shall be given, that the person con- 
 victed shall be committed or transported accordingly, over and beside 
 such punishment as shall be adjudged to be inflicted on such person, 
 agreeable to the laws now in being ; and if transportation be directed, 
 the same shall be executed in such manner as is or shall be provided 
 by law for the transportation of felons ; and if any person so com- 
 mitted or transported shall voluntarily escape or break prison, or 
 return from transportation before the expiration of the time for 
 which lie shall be ordered to be- transported as aforesaid, such person, 
 being thereof lawfully convicted, shall suffer death as a felon, with- 
 out benefit of clergy, and shall be tried for such felony in the county 
 where he so escaped, or where he shall be apprehended.' 
 
 An indictment for perjury contained two counts charging perjury 
 to have been committed by the defendant on two different occasions, 
 
 (l) Sees. 8, 9. Bat see the 5&6 Vict, imprisonment with hard labour for any term 
 
 C 38, post. Sec. 10 of 5 Eliz. c. 9, is not exceeding the term for which the Court 
 
 repealed by the 26 & 27 Vict. c. 125. may imprison for such offences, in addition 
 
 (?n) Sec. 11. to, or in lieu of, any other punishment. 
 
 {yi) Sec. 13. (p) Now penal servitude for any term 
 
 (o) The 3 Geo. 4, c. 114, provides that not exceeding seven and not less than three 
 
 any person convicted of perjury or sub- years. 
 ornation of perjury may be sentenced to
 
 uiiap. xii.J Of Perjury and Subornation of Perjury. 323 
 
 — one in the progress of a trial, the other in an affidavit in chan- 
 cery. Both acts of perjury had the same object in view. It was 
 held that a punishment might be iniiicted, in respect of each, of seven 
 years' penal servitude, the second term to commence at the term i na- 
 tion of the first, and that the offences were rightly included in the 
 same indictment, and that a general verdict of guilty was good. It 
 was also held that under 2 Geo. 2, c. 25, s. 2, there was no necessity 
 to impose any punishment previous to that of penal servitude, (q) 
 
 Statutes relating to particular forms of perjury. — Besides these stat- 
 utes, there are a great number relating to perjury committed in partic- 
 ular proceedings and transactions, and by particular persons, some of 
 which it will be proper to notice in this place. Enactments of this 
 description are to be met with in so many and such various statutes 
 that it is not presumed but that many of them have not come within 
 the editor's observation. 
 
 It should first be mentioned that the false affirmation, or declara- 
 tion, of any of the people called Quakers, made instead of an oath, 
 will subject the party to the penalties of perjury. 
 
 The 7 & 8 Will. 3, c. 34, except ss. 4 and 5, is repealed by 30 & 31 
 Vict. c. 59 (the Statute Law Revision Act, 1867). The 8 Geo. 1, c. 6, 
 relates to the declaration of fidelity and abjuration oath to be made 
 by Quakers ; and by sec. 2 of that Act persons wilfully making false 
 declarations under that act are liable to the same penalties, &c, as if 
 they had been found guilty of perjury. Sec. 1 of this Act is in part 
 repealed by 30 & 31 Vict. c. 59. The 22 Geo. 2, c. 46, s. 36, is repealed 
 by the above Act, 30 & 31 Vict. c. 59. The 9 Geo. 4, c. 32, s. 1, is 
 repealed by 36 & 37 Vict. c. 91 (the Statute Law Revision Act, 
 1873). 
 
 The 3 & 4 Will. 4, c. 49, s. 1, enacts that 'every person of the per- 
 suasion of the people called Quakers and every Moravian lie permitted 
 to make his or her solemn affirmation or declaration, instead of taking 
 an oath, in all places and for all purposes whatsoever where an oath 
 is or shall be required, either by the common law, or by any Act of 
 Parliament already made, or hereafter to be made , ' and provides that 
 'if any such person making such solemn affirmation (r) or declaration 
 shall be lawfully convicted, wilfully, falsely, and corruptly to have 
 affirmed or declared any matter or thing, which if the same had 
 been (s) in the usual form would have amounted to wilful and corrupt 
 perjury, he or she shall incur the same penalties and forfeitures as 
 by the laws and statutes of this realm are enacted against persons 
 convicted of wilful and corrupt perjury.' 
 
 The 3 & 4 Will. 4, c. 83, relating to affirmations by Separatists is 
 repealed by 53 & 54 A r ict. c. 33. 
 
 By the 1 & 2 Vict. c. 77, 'it shall be lawful for any person who 
 shall have been a Quaker or Moravian to make solemn affirmation 
 and declaration in lieu of taking an oath, as fully as it would be law- 
 ful for any such person to do if he still remained a member of either 
 
 (q) Castro v. R., 6 Ap. Cas. 229. brethren called Moravians, as the case may 
 
 (r) The form of affirmation given by this be], do solemnly, sincerely, and truly declare 
 
 statute is, ' I, A. B., being one of the people and affirm.' 
 
 called Quakers [or one of the persuasion of (s) The word ' sworn ' seems omitted 
 
 the people called Quakers, or of the united here.
 
 324 False Affirmations. [book ii. 
 
 of such religious denominations of Christians,' and persons guilty of 
 making false affirmations or declarations are liable to the same pun- 
 ishments as persons guilty of perjury, in the same manner as in the 
 preceding statute, (u) 
 
 By the 1 & 2 Vict. c. 105, 'in all cases in which an oath may law- 
 fully be and shall have been administered to any person either as a 
 juryman or a witness, or a deponent in any proceeding, civil or crimi- 
 nal, in any court of law or equity in the united kingdom, or on 
 appointment to any office or employment, or on any occasion what- 
 ever, such person is bound by the oath administered : provided the 
 same shall have been administered in such form and with such cere- 
 monies as such person may declare to be binding ; and every such 
 person, in case of wilful false swearing, may be convicted of the crime 
 of perjury in the same manner as if the oath had been administered 
 in the form and with the ceremonies most commonly adopted.' 
 
 And now by the Oaths Act, 1888 (51 & 52 Vict. c. 46), every per- 
 son who objects to be sworn and states as the ground of his objection 
 either that he has no religious belief or that the taking of any oath is 
 contrary to his religious belief, may make a solemn affirmation in the 
 form thus prescribed, ' and if any person making such affirmation shall 
 wilfully, falsely, and corruptly affirm any matter or thing which if 
 deposed on oath would have amounted to wilful and corrupt perjury 
 he shall be liable to prosecution, indictment, sentence, and punishment 
 in all respects as if he had committed wilful and corrupt perjury.' 
 
 By 19 & 20 Vict. c. 119 (entitled 'An Act to Amend the Pro- 
 visions of the Marriage and Eegistration Acts '), s. 2, every person 
 who shall knowingly or wilfully make and sign or subscribe any false 
 declaration, or who shall sign any false notice, for the purpose of pro- 
 curing any marriage under the provisions of any of the recited Acts 
 (6 & 7 Will. 4, c. 85 ; 1 Vict. c. 22 , 3 & 4 Vict. c. 72), or this Act, 
 shall suffer the penalties of perjury. 
 
 By sec. 18, any person who shall knowingly or wilfully make any 
 false declaration or sign any false notice required by this Act for the 
 purpose of procuring any marriage, and every person who shall forbid 
 the granting by any superintendent registrar of a certificate for mar- 
 riage by falsely representing himself or herself to be a person whose 
 consent to such marriage is required by law, knowing such represen- 
 tation to be false, shall suffer the penalties of perjury. (/■) 
 
 By 46 & 47 Vict. c. 51, s. 33 (7), ' If any candidate or election 
 agent knowingly makes the declaration required by this section 
 falsely, he shall be guilty of an offence, and on conviction thereof on 
 indictment shall be liable to the punishment for wilful and corrupt 
 perjury. Such offence shall also be deemed to be a corrupt practice 
 within the meaning of this Act.' 
 
 By the Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69) 
 
 (u) The form of affirmation given by this affirm.' This statute was passed in conse- 
 
 statute is, 'I, A. B., having been one of the quenee of R. v. Doran, 2 Moo. C. C. R. 37. 
 
 people called Quakers [or one of the persua- See R. v. Mooney, 5 < 'ox, C. C. 319. 
 
 sion of the people called Quakers, or of the (v) The 6 & 7 Will. 4, c. 85, s. 38, is 
 
 united brethren called Moravians, as the repealed by 37 & 38 Vict. c. 35 (the Statute 
 
 case may be], and entertaining conscientious Law Revision Act, 1874). See 3 & 4 Vict, 
 
 objections to the taking of an oath, do c. 72, s. 4. 
 solemnly, sincerely, and truly declare and
 
 chap, xii.] Of Perjury and Subornation of Perjury. 325 
 
 s. 4, a child who does not understand the nature of an oath may give 
 evidence without being sworn, but false evidence so given is to be 
 treated as perjury (w) 
 
 The 5 & 6 Will. 4, c. 62, which was passed for the purpose of abol- 
 ishing unnecessary oaths, by sec. 2 enacts, ' that in any case where, 
 by any Act or Acts made or to be made relating to the revenues of 
 customs or excise, the post-office, the office of stamps and taxes, the 
 office of woods and forests, land revenues, works, and buildings, the 
 war-office, the army pay-office, the office of the treasurer of the navy, 
 the accountant-general of the navy, or the ordnance, his Majesty's 
 treasury, Chelsea hospital, Greenwich hospital, the board of trade, or 
 any of the offices of his Majesty's principal secretaries of state, the 
 India board, the office for auditing the public accounts, the national 
 debt office, or any office under the control, direction, or superintend- 
 ence of the lords commissioners of his Majesty's treasury, or by any 
 official regulation in any department, any oath, solemn affirmation, or 
 affidavit might, but for the passing of this Act, be required to be taken 
 or made by any person on the doing of any' act, matter, or thing, or for 
 the purpose of verifying any book, entry, or return, or for any other 
 purpose whatsoever, it shall be lawful for the lords commissioners of 
 his Majesty's treasury, or any three of them, if they shall so think fit, 
 by writing under their hands and seals, to substitute a declaration to 
 the same effect as the oath, solemn affirmation, or affidavit which 
 might, but for the passing of this Act, be required to be taken or 
 made ; and the person who might, under the Act or Acts imposing 
 the same, be required to take or make such oath, solemn affirmation, 
 or affidavit, shall, in presence of the commissioners, collector, other 
 officer, or person empowered by such Act or Acts to administer such 
 oath, solemn affirmation, or affidavit, make and subscribe such declar- 
 ation, and every such commissioner, collector, other officer, or per- 
 son is hereby empowered and required to administer the same 
 accordingly.' 
 
 Sec. 3. ' The declaration so substituted is to be published in the 
 Gazette, and after twenty-one days from the date of the Gazette the 
 provisions of this Act are to apply.' 
 
 Sec. 4. — ' After the expiration of the said twenty-one days it shall 
 not be lawful for any commissioner, collector, officer, or other person 
 to administer or cause to be administered, or receive or cause to 1 >e 
 received, any oath, solemn affirmation, or affidavit, in the lieu of which 
 such declaration as aforesaid shall have been directed by the lords 
 commissioners of his Majesty's treasury to be substituted.' 
 
 Sec. 5. ' If any person shall make and subscribe any such declara- 
 tion as hereinbefore mentioned in lieu of any oath, solemn affirmation, 
 or affidavit, by any Act or Acts relating to the revenues of customs 
 or excise, stamps and taxes, or post-office, required to be made on the 
 doing of any act, matter, or thing, or for verifying any book, account, 
 entry, or return, or for any purpose whatsoever, and shall wilfully 
 make therein any false statements as to any material particular, the 
 person making the same shall be deemed guilty of a misdemeanor.' 
 
 By sec. 6, the oath of allegiance is to be required in all cases as 
 before the Act passed. 
 
 (w) See post.
 
 326 False Declarations. [book ii. 
 
 By sec. 7, oaths in courts of justice are to be taken in the same 
 manner as if the Act had not passed. 
 
 Sec. 8. ' It shall he lawful for the universities of Oxford and 
 Cambridge, and for all other bodies corporate and politic, and for all 
 bodies now by law or statute, or by any valid usage, authorized to 
 administer or receive any oath, solemn affirmation, or affidavit, to 
 make statutes, bye-laws, or orders authorizing and directing the sub- 
 stitution of a declaration in lieu of any oath, solemn affirmation, or 
 affidavit now required to be taken or made : provided always that 
 such statutes, by-laws, or orders be otherwise duly made and passed 
 according to the charter, laws, or regulations of the particular univer- 
 sity, other body corporate and politic, or other body so authoiized 
 as aforesaid.' 
 
 Sec. 9. ' In future every person entering upon the office of church- 
 warden or sidesman, before beginning to discharge the duties thereof, 
 shall, in lieu of such oath of office, make and subscribe, in the pres- 
 ence of the ordinary or other person before whom he would, but for 
 the passing of this Act, be required to take such oath, a declaration 
 that he will faithfully and diligently perform the duties of his office, 
 and such ordinary or other person is hereby empowered and required 
 to administer the same accordingly : provided always, that no church- 
 warden or sidesman shall in future be required to take any oath on 
 quitting office, as has heretofore been practised.' 
 
 Sec. 10. ' In any case where, under any Act or Acts for making, 
 maintaining, or regulating any highway, or any road, or any turnpike 
 road, or for paving, lighting, watching, or improving any city, town, or 
 place, or touching any trust relating thereto, any oath, solemn affirma- 
 tion, or affidavit might, but for the passing of this Act, be required 
 to be taken or made by any person whomsoever, no such oath, solemn 
 affirmation, or affidavit, shall in future be required to lie or be taken 
 and made, but the person who might under the Act or Acts imposing 
 the same be required to take or make such oath, solemn affirmation, or 
 affidavit, shall in lieu thereof, in the presence of the trustee, commis- 
 sioner, or other persons before whom he might under such Act or 
 Acts be required to take or make the same, make and subscribe a 
 declaration to the same effect as such oath, solemn affirmation, or affi- 
 davit and such trustee, commissioner, or other person, is hereby 
 empowered and required to administer and receive the same.' 
 
 Sec. 11. ' Whenever any person or persons shall seek to obtain any 
 patent under the Great Seal for any discovery or invention, such 
 person or persons shall, in lieu of any oath, affirmation, or affidavit 
 which heretofore has or might be required to be taken or made upon 
 or before obtaining any such patent, make and subscribe, in the pres- 
 ence of the person before whom he might, but for the passing of this 
 Act, be required to take or make such oath, affirmation, or affidavit, 
 a declaration to the same effect as such oath, affirmation, or affidavit ; 
 and such declaration, when duly made and subscribed, shall be to all 
 intents and purposes as valid and effectual as the oath, affirmation, or 
 affidavit in lieu whereof it shall have been so made and subscribed.' 
 
 Sec. 12. 'Where by any Act or Acts at the time in force for regu- 
 lating the business of pawnbrokers, any oath, affirmation, or affidavit 
 might, but for the passing of this Act, be required to be taken or
 
 chap. XII.] Of Perjury and Subornation of Perjury, 327 
 
 made, the person who by or under such Act or Acts might be required 
 to take or make such oath, affirmation, or affidavit, shall in lieu thereof 
 make and subscribe a declaration to the same effect ; and such declara- 
 tion shall be made and subscribed at the same time, and on the same 
 occasion, and in the presence of the same person or persons, as the 
 oath, affirmation, or affidavit in lieu whereof it shall be made and sub- 
 scribed would by the Act or Acts directing or requiring the same 
 be directed or required to be taken or made ; and all and every the 
 enactments, provisions, and penalties contained in or imposed by any 
 such Act or Acts, as to any oath, affirmation, or affidavit thereby 
 directed or required to be taken or made, shall extend and apply to 
 any declaration in lieu thereof, as well and in the same manner as if 
 the same were herein expressly enacted with reference thereto.' 
 
 Sec. 13, reciting that 'a practice has prevailed of administering and 
 receiving oaths and affidavits voluntarily taken and made in matters 
 not the subject of any judicial inquiry, nor in anywise pending or at 
 issue before the justice of the peace, or other person by whom such 
 oaths or affidavits have been administered or received,' and that 
 ' doubts have arisen whether or not such proceeding is illegal, for 
 the more effectual suppression of such practice and removing such 
 doubts,' enacts, ' that from and after the commencement of this Act, 
 it shall not be lawful for any justice of the peace or other person to 
 administer, or cause or allow to be administered, or to receive, or 
 cause or allow to be received, any oath, affidavit, or solemn affirmation 
 touching any matter or thing whereof such justice or other person 
 hath not jurisdiction or cognizance by some statute in force at the 
 time being (x) : provided always, that nothing herein contained shall 
 be construed to extend to any oath, affidavit, or solemn affirmation 
 before any justice in any matter or thing touching the preservation of 
 the peace, or the prosecution, trial, or punishment of offences, or touch- 
 ing any proceedings before either of the Houses of Parliament, or any 
 committee thereof respectively, nor to any oath, affidavit, or affirmation 
 which may be required by the laws of any foreign country to give 
 validity to instruments in writing designed to be used in such foreign 
 countries respectively.' (y) 
 
 Sec. 14. ' In any case in which it has been the usual practice of 
 the Bank of England to receive affidavits on oath to prove the death 
 of any proprietor of any stocks or funds transferable there, or to 
 identify the person of any such proprietor, or to remove any other 
 impediment to the transfer of any such stocks or funds, or relating to 
 the loss, mutilation, or defacement of any bank-note or bank post bill, 
 no such oath or affidavit shall in future be required to be taken or 
 made, but in lieu thereof the person who might have been required to 
 take or make such oath or affidavit shall make and subscribe a declara- 
 tion to the same effect as such oath or affidavit.' 
 
 By sec. 15, declarations are substituted in lieu of the oaths required 
 by the 5 Geo. 2, c. 7, ' An Act for the more easy recovery of debts in 
 his Majesty's plantations and colonies in America,' and the 54 Geo. 3, 
 
 (x) See R. v. Nott, 0. & M. 288. voluntary and compulsory proceedings. See 
 
 (y) There are some cases where a justice Helier v. The Hundred of Benhurst, Cro. 
 
 may administer an oath out of his county, Car. 211. 
 
 and the distinction seems to be between
 
 328 False Declarations. [book. ii. 
 
 c. 15, " An Act for the more easy recovery of debts in his Majesty's 
 colony of New South Wales." 
 
 Sec. 16. 'It shall and may be lawful to and for any attesting witness 
 to the execution of any will, or codicil, deed, or instrument in writing, 
 and to and for any other competent person, to verify and prove the 
 signing, sealing, publication, or delivery of any such will, codicil, 
 deed, or instrument in writing, by such declaration in writing made 
 as aforesaid, and every such justice, notary, or other officer shall be 
 and is hereby authorized and empowered to administer or receive 
 such declaration.' 
 
 Sec. 17. 'In all suits now depending or hereafter to be brought in 
 any court of law or equity by or in behalf of his Majesty, his heirs 
 and successors, in any of his said Majesty's territories, plantations, 
 colonies, possessions, or dependencies, for or relating to any debt or 
 account, that his Majesty, his heirs and successors, shall and may 
 prove his and their debts and accounts, and examine his or their 
 witness or witnesses by declaration, in like manner as any subject or 
 subjects is or are empowered or may do by this present Act.' 
 
 Sec. 18, reciting that ' it may be necessary and proper in many cases 
 not herein specified, to require confirmation of written instruments or 
 allegations, or proof of debts, or of the execution of deeds or other 
 matters,' enacts that ' it shall and may be lawful for any justice of the 
 peace, notary public, or other officer now by law authorized to adminis- 
 ter an oath, to take and receive the declaration of any person volun- 
 tarily making the same before him in the form in the schedule to 
 this Act annexed ; and if any declaration so made shall be false or 
 untrue in any material particular, the person wifully making such 
 false declaration shall be deemed guilty of a misdemeanor.' (z) 
 
 Sec. 21. 'In any case where a declaration is substituted for an oath 
 under the authority of this Act, or by virtue of any power or authority 
 hereby given, or is directed and authorized to be made and subscribed 
 under the authority of this Act, or by virtue of any power hereby 
 given, any person who shall wilfully and corruptly make and subscribe 
 any such declaration, knowing the same to be untrue in any material 
 particular, shall be deemed guilty of a misdemeanor.' (a) 
 
 With respect to the first of the statutes above set forth, namely, 
 the 5 Eliz. c. 9, as it is but little resorted to at the present time, on 
 account of prosecutions upon it being more difficult than at the com- 
 mon law, and as it did not alter the nature of the offence, but merely 
 enlarged the punishment, (b) a brief statement of some of the prin- 
 cipal points decided upon its construction will probably be deemed 
 sufficient. 
 
 (,:) See«?i<e, p. 66, for the punishment, and (a) See ante, p. 66, for the punishment, 
 
 see the cases on this section, post. By sec. 19, The number of statutes which contain 
 
 the same fees are payable on declarations as clauses making persons giving false evi- 
 
 on the oaths in lieu of which they are made, derice, making false affidavits, &c, either 
 
 By sec. 19, the declaration is to be in the liable to the punishment of perjury or guilty 
 
 form following: — 'I, A. B., do solemnly of a misdemeanor, is so large that it is con- 
 
 and sincerely declare, that and I make ceived they would occupy more space than 
 
 this solemn declaration conscientiously be- the infrequency of the occasions on which 
 
 lieving the same to be true, and by virtue it may be necessary to consult them, war- 
 
 of the provisions of an Act made and passed rants devoting to their insertion ; all of 
 
 in the year of the reign of his present them, therefore, have not been inserted. 
 
 Majesty, entitled an Act ' [here insert the C. S. G. 
 
 title of this Act]. (h) Buxton v. Gouch, 3 Salk. 269.
 
 chap, xii.] Of Perjury and Subornation of Perj <i r//. 320 
 
 In many instances an indictment will lie at common law, when it 
 will not lie upon this statute. Thus where a witness for the King 
 swears falsely, he cannot he indicted on the statute, (c) 
 
 It has been adjudged that a man cannot be guilty of perjury within 
 this statute, in any case wherein he may not possibly be guilty of 
 subornation of perjury within it; on the ground that it is reasonable 
 to give the whole statute the same construction ; and that it cannot 
 well be intended that the makers of it meant to extend its purview 
 farther as to perjury, which they appear to have considered as the less 
 crime, than to subornation of perjury, which they seem to have 
 esteemed the greater : and, therefore, since the clause concerning sub- 
 ornation of perjury, mentioning only matters depending by writ, bill, 
 plaint, or information, concerning hereditaments, goods, debts, or 
 damages, &c, does not extend to perjury on an indictment or criminal 
 information, the clause concerning perjury, though penned in more 
 general words, has been adjudged to come under the like restriction, (d) 
 And it has also been resolved, that as the clause concerning suborna- 
 tion of perjury relates only to perjury by witnesses, that concerning 
 perjury extends to no other perjury than that of a witness ; and, there- 
 fore, not to perjury in an answer in chancery ; or in swearing the 
 peace against a man ; or in a presentment by a homager in a court 
 baron, or in a wager of law, or in swearing before commissioners of the 
 King's title to lands, (e} And by the opinions of some, a false affidavit 
 against a man, in a court of justice, is not within the statute. (/) But 
 it is observed that if such affidavit be by a third person, and relate to 
 a cause depending in suit, before the Court, and either of the parties 
 in variance be grieved, hindered, or molested, in respect of such cause, 
 by reason of the perjury, it may be strongly argued that it is within 
 the purview of the statute, (g) It seems to be the better opinion that 
 a false oath before the sheriff on a writ of inquiry of damages is within 
 the statute, (h) 
 
 It has been collected from the clause giving an action to the party 
 grieved, that no false oath is within the statute which does not give 
 some person a just cause of complaint ; and, therefore, that if the thing 
 sworn be true, though it be not known by him that swears it to be 
 so, the oath is not within the statute, because it gives no good ground 
 of complaint to the other party, who would take advantage of another's 
 want of sufficient evidence to make out the justice of the cause. (?) 
 And upon the same ground no false oath can be within the statute, 
 unless the party against whom it was sworn suffered some disadvan- 
 tage by it : therefore, in every prosecution on the statute, it is necessary 
 to set forth the record wherein the perjury is supposed to have been 
 committed, and to prove at the trial that there is such a record, either 
 by actually producing it, or by an attested copy ; and it is necessary 
 not only to set forth in the pleadings the point wherein the false oath 
 
 (c) Id. ibid. (g) 1 Hawk. P. C. c. 69, s. 21. 
 
 \d) Bac. Ab. tit. Perjury (B). 1 Hawk. (h) Bac. Abr. tit. Perjury (B). 1 Hawk. 
 
 P. C. c. 69 s. 19. P. C. c. 69 s. 21. 
 
 (c) 1 Hawk. P. C. c. 69, s. 20. Bac. " (i) 1 Hawk. P. C. c. 69, s. 22. Bac. 
 
 Abr. tit. Perjury (B). Abr. tit. Perjury (B). We have seen that 
 
 (/) 2 Roll. Abr. 77. 1 Roll. 79. 3 Keb. this is otherwise at common law. Ante, 
 
 345. p. 291.
 
 330 Indictment. [book ii. 
 
 was taken, but to show also how it conduced to the proof or disproof 
 of the matter in question. (J) And if an action on the statute be 
 brought by more than one, it is necessary to show how the perjury 
 was prejudicial to each of the plaintiffs, (k) But it seems that a per- 
 jury, which tends only to aggravate or extenuate the damages, is as 
 much within the statute as a perjury that goes directly to the point 
 in issue ; and that perjury committed in a cause wherein an erroneous 
 judgment is given, is a good ground of a prosecution upon the statute 
 till the judgment be reversed. (/) 
 
 indictment. — It has been holden that every indictment or action 
 upon 5 Eliz. c. 9, must exactly pursue the words of it ; and, therefore, 
 if it allege that the defendant deposed such a matter /also et deceptive, 
 or /also et corrupte, or /also et voluntarie, without saying voluntarie 
 et corrupte, it is not good, though it conclude that sic voluntarium et 
 corruption commisit perjurium contra formarn statuti, &c. Also it is 
 said to be necessary expressly to show that the defendant was sworn ; 
 and that it is not sufficient to say that tacto per se sacro evangelio de- 
 posicit. But there is no need to show whether the party took the false 
 oath through the subornation of another, or of his own act, though the 
 words of the statute are, ' If persons by subornation, &c, or their own 
 act, &c., shall commit wilful perjury;' for there being no medium be- 
 tween the branches of this distinction, they seem to be put in ex abun- 
 danti, and to express no more than the law would have implied, and, 
 therefore, operate nothing, (m) 
 
 It seems that if perjury be committed that is within this statute, 
 but the indictment concludes not contra formarn statuti, yet it is a 
 good indictment at common law, but not to bring the offender within 
 the corporal punishment of the statute, (n) 
 
 By 14 & 15 Yict. c. 100. s. 19 ' it shall and may be lawful for the 
 judges or judge of any of the superior courts of common law or equity, 
 or for any of Her Majesty s justices or commissioners of assize, nisi 
 prius, oyer and terminer, or gaol delivery, or for any justices of the 
 peace, recorder, or deputy recorder, chairman, or other judge holding 
 any general or quarter sessions of the peace, or for any commissioner 
 of bankruptcy or insolvency, or for any judge or deputy judge of any 
 county court, or any court of record, or for any justices of the peace 
 in special or petty sessions, or for any sheriff or his lawful deputy 
 before whom any writ of inquiry or writ of trial from any of the supe- 
 rior courts shall be executed, in case it shall appear to him or them 
 that any person has been guilty of wilful and corrupt perjury in any 
 evidence given, or in any affidavit, deposition, examination, answer, or 
 other proceeding made or taken before him or them, to direct such 
 person to be prosecuted for such perjury, in case there shall appear to 
 him or them a reasonable cause for such prosecution, and to commit 
 such person so directed to be prosecuted until the next session of oyer 
 
 (j) Bac. Abr. tit. Perjury (B). 1 Hawk, wards reversed by error, may not still be 
 
 P. C. c. 69, s. 23. punished as perjury, notwithstanding such 
 
 (k) Id. ibid. reversal \ See R. v. Meek, ante, p. 318. 
 
 (/) 1 Hawk. P. C. c. 69, s. 23. Bac. (m) 1 Hawk. P. C. c. 69, ss. 17,18. Bac. 
 
 Abr. tit. Perjury (B). In 1 Hawk. P. C. Abr. tit. Perjury (B), and the authorities 
 
 e. 69, s. 4, there is a qa. whether perjury there cited. 
 in a court, whose proceedings are after- (n) 2 Hale, 191, 192.
 
 C'UAP. XII.] Of Perjury and Subornation of Perjury. 331 
 
 and terminer or gaol delivery for the county or other district within 
 which such perjury was committed, unless such person shall enter into 
 a recognizance, with one or more sufficient surety or sureties, conditioned 
 for the appearance of such person at such next session of oyer and 
 terminer or gaol delivery, and that he will then surrender and take his 
 trial, and not depart the Court without leave, and to recpiire any person 
 he or they may think lit to enter into a recognizance, conditioned to 
 prosecute or give evidence against such person so directed to be prose- 
 cuted as aforesaid, and to give to the party so bound to prosecute a 
 certificate of the same being directed, which certificate shall lie given 
 without any fee or charge, and shall be deemed sufficient proof of such 
 prosecution having been directed as aforesaid ; and upon the produc- 
 tion thereof the costs of such prosecution shall and are hereby required 
 to be allowed by the Court before which any person shall be prosecuted 
 or tried in pursuance of such direction as aforesaid, unless such last- 
 mentioned Court shall specially otherwise direct ; and when allowed 
 by any such Court in Ireland such sum as shall be so allowed shall 
 be ordered by the said Court to be paid to the prosecutor by the treas- 
 urer of the county in which such offence shall be alleged to have been 
 committed, and the same shall be presented for, raised, and levied in 
 the same manner as the expenses of prosecutions for felonies are now 
 presented for, raised, and levied in Ireland : provided always, that no 
 such direction or certificate shall be given in evidence upon any trial 
 to be had against any person upon a prosecution so directed as afore- 
 said.' 
 
 Sec. 20. ' In every indictment for perjury, or for unlawfully, 
 wilfully, falsely, fraudulently, deceitfully, maliciously, or corruptly 
 taking, making, signing, or subscribing any oath, affirmation, declara- 
 tion, affidavit, deposition, bill, answer, notice, certificate, or other 
 writing, it shall be sufficient to set forth the substance of the offence 
 charged upon the defendant, and by what Court or before whom the 
 oath, affirmation, declaration, affidavit, deposition, bill, answer, notice, 
 certificate, or other writing, was taken, made, signed, or subscribed, 
 without setting forth the bill, answer, information, indictment, de- 
 claration, or any part of any proceeding, either in law or in equity, 
 and without setting forth the commission or authority of the Court 
 or person before whom such offence was committed.' (o) 
 
 An indictment for perjury alleged to have been committed on a trial 
 before the Court of Quarter Sessions, averred in substance that a cer- 
 tain indictment for misdemeanor, &c, came on to be tried in due form 
 of law, and was tried by a jury duly sworn, and the prisoner, as a 
 witness on the trial, was duly sworn, and contained the other usual 
 
 (o) It was lamented by a learned judge, he need under this statute, he must set them 
 
 that the party prosecuting for perjury did not forth correctly ; but it was holden that the 
 
 more frequently avail himself of the 23 Geo. 2, commission at the admiralty session being 
 
 c. 11 (now repealed), made for the purpose of set forth as directed to A., B., and C, and 
 
 obviating difficulties in drawing the indict- others not named, of which number A., B., 
 
 ments. In the case in which this remark and C, amongst others, should always be 
 
 was made, the commission at the admiralty one, the Court must take it to mean that if 
 
 session had been unnecessarily set forth in either of the persons named of the quorum 
 
 the indictment ; and it was admitted that were present, it would be sufficient. R. v. 
 
 where a prosecutor undertakes to set out in Dowlin, 5 T. R. 311. 
 the indictment more of the proceedings than
 
 332 Indictment. [book ii. 
 
 averments and conclusion. It did not state the nature of the misde- 
 meanor, or aver that the Court of Quarter Sessions had authority to 
 try the same or administer an oath on the trial. Held, that the sub- 
 stance of the offence charged against the defendant was sufficiently 
 stated under this enactment, and that the indictment was good on 
 motion in arrest of judgment, (p) 
 
 Sec. 21. 'In every indictment for subornation of perjury, or for 
 corrupt bargaining or contracting with any person to commit wilful 
 and corrupt perjury, or for inciting, causing, or procuring any per- 
 son unlawfully, wilfully, falsely, fraudulently, deceitfully, maliciously, 
 or corruptly to take, make, sign, or subscribe any oath, affirmation, 
 declaration, affidavit, deposition, bill, answer, notice, certificate, or 
 other writing, it shall be sufficient, wherever such perjury or other 
 offence aforesaid shall have been actually committed, to allege the 
 offence of the person who actually committed such perjury or other 
 offence in the manner hereinbefore mentioned, and then to allege 
 that the defendant unlawfully, wilfully, and corruptly did cause and 
 procure the said person the said offence, in manner and form aforesaid, 
 to do and commit ; and wherever such perjury or other offence afore- 
 said shall not have been actually committed, it shall be sufficient to 
 set forth the substance of the offence charged upon the defendant, 
 without setting forth or averring any of the matters or things herein- 
 before rendered unnecessary to be set forth or averred in the case of 
 wilful and corrupt perjury.' 
 
 Sec. 22. 'A certificate containing the substance and effect 
 only (omitting the formal part) of the indictment and trial for any 
 felony or misdemeanor, purporting to be signed by the clerk of the 
 Court or other officer having the custody of the records of the Court 
 where such indictment was tried, or by the deputy of such clerk or 
 other officer (for which certificate a fee of six shillings and eightpence 
 and no more shall be demanded or taken), shall upon the trial of any 
 indictment for perjury or subornation of perjury be sufficient evidence 
 of the trial of such indictment for felony or misdemeanor, without 
 proof of the signature or official character of the person appearing to 
 have signed the same.' (q) 
 
 It has been holden, on motion in arrest of judgment, that several per- 
 sons cannot be joined in one indictment for perjury, the crime being in 
 its nature several. (?•) But this does not apply to subornation of 
 perjury, (s) 
 
 Venue. — With respect to the venue in an indictment for perjury, it 
 may be briefly observed that the parish or place, unless used as giving 
 some specific local description, will not be material, and that it will be 
 
 (p) R. v. Dunning, 40 L. J. M. C. 58, (s) R. v. Rhodes, 2 Ld. Raym. 886. In 
 et per Channell, B.,"'This section is al- R. v. Goodfellow, C. & M. 569. one defend- 
 most identical in terms with sec. 1 of 23 ant was indicted for perjury, and the other 
 Geo. 2, c. 11, except that it omits the words for suborning him to commit the perjury, 
 "averring such Court or person or persons and no objection taken to both being in- 
 to have a competent authority to administer eluded in the same indictment ; and it 
 the same." ' should seem none could have been success- 
 
 (q) The production of the indictment fully taken on that ground, as it is like 
 
 itself is insufficient. R. v. Coles, 16 Cox, the case of principal and accessory before 
 
 C. C. 165. the fact, included in the same indictment. 
 
 (r) R. v. Philips, 2 Str. 921. C. S. G.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 333 
 
 sufficient to show the offence committed anywhere within the county. 
 The statement of venue in the margin is now sufficient, (t) In a case 
 where perjury had been committed in the booth-hall within the limits 
 of the city of Gloucester, which is a county of itself, on the trial of a 
 cause before a jury of the county at large, it was holden that the in- 
 dictment might be found and tried by juries of the county at large, (u) 
 And where perjury had been committed on the trial of an indictment 
 the Worcester quarter sessions, which were held in the Guildhall 
 at Worcester, which is situate in the county of the city of Worcester, 
 it was held that the indictment, which was found by the grand jury 
 of the county of the city of Worcester, was good, as it was preferred 
 in the county where the oath was actually taken, (v) A sufficient 
 venue was holden to be laid on the act of taking the false oath in a 
 case where perjury was assigned on an affidavit of an attorney of the 
 Court made in answer to a summary application against him, and 
 where it was objected that it was not stated where the Court was 
 holden when the original application was made, or when the rule was 
 made, calling upon the defendant to answer the charge, it being ex- 
 pressly averred that the defendant ' then and there before the said 
 Court was duly sworn.' (w) In the instance of making an affidavit in 
 the country, the party is not to be indicted where the affidavit may 
 happen to be used, but in the county where the offence was completed, 
 by making the false oath, (x) 
 
 Time. — • The indictment need not state the time at which the offence 
 was committed in any case where time is not of the essence of the 
 offence. (//) Where it is not material, it need not be averred ; and if 
 averred, it may be rejected, (z) In a case where an indictment for 
 perjury, charged to have been committed in the defendant's answer to 
 a bill of discovery filed in the Court of Exchequer, alleged that the 
 bill was filed on a day specified, it was holden that the day was not 
 material, as it was not alleged as part of the record : and, therefore, 
 that it was no variance, though the bill, when produced, appeared to 
 be entitled generally of a preceding term, (a) Where the perjury was 
 assigned in answer to a bill alleged to have been filed in a particular 
 term, and a copy produced was of a bill amended in a subsequent term, 
 by order of the Court, it was held to be no variance, the amended bill 
 being part of the original bill, (h) So it has been held on an indict- 
 ment for perjury committed on the trial of a cause at nisi prius to 
 
 (t) See the 14 & 15 Vict. c. 100, s. 23, Aylett, 1 T. R. 69. In R. v. Kimptou, 2 
 
 See Harris's case, 2 Leach, 800 ; R. v. Wood- Cox, C. C. 296, Parke, B., douhted whether 
 
 ward, R. & M. C. C. R. 323. an averment of the materiality of a thing 
 
 (n) R. v. Gough, Dougl. 791. In this occurring on ' Monday, the 29th of June, in 
 
 case a charter had made Gloucester a the year 1846, was sufficient after verdict, 
 
 county of itself, reserving only the trial as the proper course is either to state the 
 
 of matters arising in the county at large year of our Lord, or the year of the monarch's 
 
 within Gloucester as before. The judges reign ; and he left the prisoner to his writ of 
 
 intimated their opinions that the indict- error. 
 
 ment might be in either county, but they (z) R. v. Aylett, 1 T. R. 70, 71. 
 
 were clear it might be in the county at (a) R. v. Hucks, cor. Lord Ellenborough, 
 
 large. C. J., 1 Stark. R. 521. And see Rastan?;. 
 
 (v) R. v. Jones, 6 C. & P. 137, Tindal, Straton, 1 H. B. 49. Woodford v. Ashley, 
 
 C. J. 2 Campb. 193, and 1 Stark. Crim. Plead. 
 
 (w) R. v. Crossley, 7 T. R. 315. 122. 
 
 (a;) By Lord Kenyon, C. J. Id. ibid. (b) R. v. Waller, Mich. 6 Geo. 1, 3 Stark. 
 
 (y) 14 & 15 Vict. c. 100, s. 24. R. v. Evid. 856.
 
 334 Indictment. [book ii. 
 
 be no variance that the nisi prius record states the trial to have been 
 on a day different from that stated in the indictment, there being no 
 express reference in the indictment to the record, (c) 
 
 Variances. — It is proper to make such a statement by way of induce- 
 ment as will be sufficient to explain the assignment of perjury, and make 
 it intelligible and consistent. And such statements in the indictment 
 should be made with accuracy. An indictment for perjury stating a 
 bill of Middlesex as ' issuing out of the office of the chief clerk 
 assigned to inrol pleas in the Court,' &c, has been holden to be 
 bad. (d) And if the indictment state that at the assizes, holden before 
 justices assigned to take the said assizes, the oath was taken before 
 A. B., one of the said justices, the said justice then and there having 
 power, &c, it will be a fatal variance if the oath was administered 
 when the judge was sitting under the commission of oyer and terminer 
 and gaol delivery, (e) 
 
 An indictment for perjury alleged that at the assizes holden for the 
 county of Stafford, on &c, at &c, before Sir J. P. &c, ' justices assigned 
 to take the assizes in and for the said county,' one Corns was tried for 
 a rape, and that the prisoner on that trial swore, &c. The record of the 
 former trial stated it to have taken place ' at the assizes and general 
 session of oyer and terminer.' It was objected that the indictment 
 was bad, as an indictment for rape could not be tried under the com- 
 mission of assize. Greaves, Q. C, doubted whether the indictment was 
 necessarily bad ; as the indictment for rape might have been removed 
 by certiorari, and tried on the civil side ; in which case the allegation 
 that it was tried at the assizes might suffice. (/) 
 
 It was further objected that there was a variance, as the record 
 produced showed that the trial had taken place in the crown court, 
 and thereupon an amendment of the indictment was prayed. Greaves, 
 Q. C, consulted Williams, J., and they agreed that there was a vari- 
 ance, but that there was no power to amend the indictment under the 
 9 Geo. 4, c. 15, as the allegation was the statement of a fact, viz. the 
 Court before which the trial took place, and was not the ' recital or 
 setting forth ' of ' any matter in writing or print,' within that Act. {g) 
 
 An indictment alleged that a trial took place at a session of gaol 
 delivery before Lord Campbell, chief justice of our lady the Queen, 
 assigned to take pleas before the Queen herself, and Sir E. V. Williams, 
 
 (c) R. v. Coppard, Moo. & M. 118. 3 C. assize. And this is according to what Lord 
 
 & ?. 59, per Lord Tenterden, C. J., on the Holt said (Bullock v. Parsons, 2 Salk. 454), 
 
 authority of Purcell v. Macnamara, 9 East, ' The authority of the judge of nisi prius is 
 
 156. not by the distringas, but by the commission 
 
 (d) R. v. Scole, Peake, N. P. R. 112, of assize ; for it is the 13 Ed. 3, c. 30, which 
 
 Lord Kenyon, C. J. gives the trial by nisi prius, and by that 
 
 (e) R. v. Lincoln, MS. Bayley, J., and R. statute the trial by nisi prius is given before 
 
 & R. 421. justices of assize.' It is clear, therefore, that 
 
 ( f) See the precedents, 2 Chitt. C. L. where perjury is committed either on a civil 
 
 366, 367 (a), of indictments for perjury on or criminal trial at nisi prius on circuit the 
 
 the trial of causes at the assizes, "which are trial ought to be alleged to have taken place 
 
 in the form of this indictment ; though, before the justices assigned to take the 
 
 according to 3 Bl. C. 60, the commission of assizes. C. S. G. 
 
 assize is to take the verdict of a peculiar (;y) P. v. Fairburn, Stafford Sum. Ass. 
 
 species of jury, called an assize. Blackstone 1850. MSS. C. S. G. The prisoner was 
 
 also speaks of a commission of assize being acquitted, or the points would have been 
 
 issued each circuit ; but no such commission reserved. It seems clear that the amend- 
 
 is now issued, and the cases tried on the ment .in such a case might now be made under 
 
 civil side are tried under the commission of the 14 & 15 Vict. c. 100, s. 1.
 
 chap, xil.] Of Perjury and Subornation of Perjury. 335 
 
 knight, one of the justices of our said lady the Queen of her Court of 
 Common Pleas, assigned to deliver the said gaol of the prisoners 
 therein. It was objected that the words 'assigned to deliver, &c.,' 
 did not apply to Lord Campbell, but only to Williams, J. ; but on 
 its appearing that the record had 'and others their fellow-justices 
 assigned to deliver/ &c, Talfourd, J., directed the indictment to be 
 amended, (h) 
 
 Where an indictment for perjury alleged the former trial to have 
 taken place ' at the assizes and general session of the delivery of the 
 gaol/ it was objected that this was an impossible combination of civil 
 and criminal jurisdiction, and Talfourd, J., ordered the word assizes 
 to be struck out of the indictment. {%) 
 
 Where an indictment for perjury, committed in a written deposition 
 before a magistrate, in which deposition a word necessary to the sense 
 had been omitted, set out the substance and effect of the deposition, 
 and supplied a word which the sense required, as though it was 
 actually in the deposition, the variance was holden to be fatal, (j) 
 And where a count in an indictment undertakes to set out continu- 
 ously the substance and effect of what the defendant swore upon his 
 examination, it must be proved that in substance and effect he swore 
 the whole of what is set out, though several distinct assignments of 
 perjury are made thereon. (/.:) 
 
 Where perjury is assigned upon several parts of an affidavit, and 
 such parts are set out continuously, it is no variance if such parts are 
 separated by other intervening matter, provided what intervenes does 
 not vary the effect of what is set out. An indictment for perjury 
 alleged to have been committed in an affidavit, set out various mat- 
 ters deposed to as if they had been continuous in the affidavit, but on 
 the production of the affidavit, it appeared that the parts set out in 
 the indictment were not continuous, but were separated by the intro- 
 duction of other matter. It was contended that there was clearly a 
 variance between the affidavit set out in the indictment and that given 
 in evidence. The proper mode of stating it was, ' in one part whereof 
 the defendant swore such and such things, and in another part whereof 
 he swore certain other things.' In actions or indictments for libel 
 such a variance would clearly be fatal. Abbott, C. J., ' In actions or 
 indictments for libel the tenor must be set out ; in indictments for 
 perjury it is sufficient to state the substance and effect of the false 
 oath , the variance pointed out is therefore immaterial.' (I) And the 
 
 (h) R. v. Child, 5 Cox, C. C. 197. Spr. with an umbrella, and, at the same lim, , 
 
 Ass. 1851. threatened to shoot her with a pistol; but 
 
 (i) R. v. Child, 5 Cox, C. C. 197. The when the deposition was produced it ap- 
 
 copy of the record described the court as a peared that, after stating the assault with 
 
 general session of oyer and terminer and gaol the umbrella, it proceeded thus, ' and at the 
 
 delivery, and Talfourd, J., ordered the in- same threatened to shoot,' &c, omitting the 
 
 dictment to be amended accordingly. word time. 
 
 (j) R. v. Taylor, 1 Campb. 404. Ellen- (k) R. v. Leefe, 2 Campb. 134. Lord 
 borough, C. J. The deposition should have Ellenborough, C. J., post. It appears, how- 
 been set out literally, and the meaning ex- ever, that in R. v. Rhodes, 2 Lord Raym. 
 plained by an innuendo. The indictment 886, it was holden, upon an indictment con- 
 stated that the defendant went before a jus- taining only one count, that although all the 
 tice of the peace, and swore in substance to assignments of perjury but one were bad, 
 the effect following, that is to say, &c, and judgment should not be arrested. And see 
 part of the deposition so set forth was that a Compagnon v. Martin, 2 Black. R. 790. 
 person therein named assaulted the deponent (I) R. v. Callauan, 6 B. & C. 102.
 
 336 Indictment. [book ii. 
 
 same has been held as to evidence given upon a trial. An indictment 
 for perjury committed on the trial of an action for assault and bat- 
 tery, charged the defendant with having sworn that the plaintiff spit 
 in the defendant's face before the defendant struck him, and that he, 
 the defendant in the indictment, had not said certain words, and as- 
 signed perjury on both statements. The evidence given by the defend- 
 ant on the former trial contained all the matter charged as perjury, 
 but other matter intervened between the statement as to the spitting 
 and that as to the words. It was objected that this was a variance, 
 as the evidence charged as perjury in the indictment appeared to have 
 been given continuously ; but Abbott, C. J., held it was immaterial, as 
 what intervened did not vary the effect of what was stated, (m) 
 
 In an indictment for perjury committed before a select committee 
 of the House of Commons, it was averred that the election was 
 held by virtue of a certain precept of the high sheriff, by him duly 
 issued to the bailiff of the borough of New Malton ; and it was 
 holden that this was not matter of description, and that the pro- 
 duction of a precept, which in fact issued to the bailiff of the bor- 
 ough of New Malton, though directed to the bailiff of the borough 
 of Malton, was sufficient. But the indictment also stated that A. 
 and B. were returned to serve as burgesses for the said borough of 
 New Malton ; and this was considered as a description of the indent- 
 ure of return, in which the borough was described as the borough of 
 Malton; and the variance was holden to be fatal. (n) But where an 
 information for perjury committed before a select committee of the 
 House of Commons, stated that the committee was chosen to try and 
 determine the merits of an election, and that the committee were 
 sworn 'to try the merits of the petition referred to them,' it was 
 held that the committee was well described, although by the 10 Geo. 3, 
 c. 16, s. 13, they were to be a committee 'to try and determine the 
 merits of the return or election.' (o) 
 
 An indictment may be supported upon an answer in a court of 
 equity, though the answer is not correctly entitled and the name of 
 one of the parties be mistaken. Thus where an indictment alleged 
 that Francis Cavendish Aberdeen and others exhibited their bill in 
 the exchequer, &c, and, on the production of the bill, the complain- 
 ants on the face of it purported to be J. C. Aberdeen, and others, it was 
 holden that this was not a variance, and that it was competent to the 
 prosecutor to prove, by other means than by the bill itself, the allega- 
 tion that Francis Cavendish Aberdeen did, in fact, exhibit his bill, (p) 
 And it was further holden not to be a variance, although after the 
 allegation in question, and after setting out such parts of the bill as 
 were necessary, these words were added, ' as appears by the said bill, 
 &c, filed of record ; ' on the ground that these words referred to the 
 last antecedent, and could not be considered as incorporated with the 
 prefatory allegation that Francis Cavendish Aberdeen exhibited his 
 bill (q) And in an indictment for perjury committed in an answer to 
 a bill in chancery, where the bill was stated to have been filed by A. 
 against B. (the defendant in the indictment) and another, though in 
 
 (m) R. v. Solomon. R. & M. N. P. R. 252. (p) R. v. Roper, 6 M. & S. 327. 1 Stark. 
 
 (n) R. v. Leefe, 2 Campb. 134. R. 518. Lord Ellenborough, C. J. 
 
 (o) R. v. Dunn, 1 Dowl. & R. 10. (q) Id. ibid.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 337 
 
 fact it was tiled against B., C, and I)., the variance was holden not to 
 be fatal ; the perjury being assigned on a part of the answer which was 
 material between A. and B. (r) So where an indictment for perjury 
 in answer to a bill in chancery described the bill as exhibited against 
 three persons only, viz., A., B., and C, and the bill when produced 
 appeared to be against A., B., and D. ; Abbott, C. J., held that this 
 was not a fatal variance, and that the bill produced must be consid- 
 ered as the same described in the indictment. If the indictment had 
 professed to set forth the title of the bill, such variance would have 
 been fatal, but the bill was substantially described, and that was suffi- 
 cient, (s) So if an indictment for perjury state that there was a suit 
 depending in the Ecclesiastical Court between W. Peacock and E. Miles, 
 and the proceedings in that Court state that the suit was between 
 W. Peacock and R. Miles, the elder, this is no variance, (t) 
 
 Where an indictment alleged that an action was pending ' in the 
 Whitechapel county court of Middlesex, holden at the court-house in 
 Osborn-Street, Whitechapel, in the county of Middlesex, &c, before 
 J. M., then and there being the judge of the said court ; ' and it was 
 objected that the description ought to have been ' the county court 
 of Middlesex holden at Whitechapel, in the county of M.,' in pursu- 
 ance of the 9 & 10 Vict. c. 95 ; the Court of Exchequer Chamber held 
 that it did sufficiently appear that the court was held in pursuance 
 of that statute ; for it was alleged to be a county court, and held 
 before a single judge, (u) 
 
 It has been holden that, though there be two counts in the original 
 proceeding, an averment that an issue came on to be tried is not a 
 variance, (v) And where an indictment for perjury alleged that a 
 certain issue in a plea of debt came on to be tried, and that upon the 
 trial of the said issue so joined between the parties, certain questions 
 became material, &c, but by the record it appeared that three issues 
 had been joined on three pleas ; it was objected that it was impossible 
 to know to which of them the averment of materiality referred ; but 
 Erie, J., held that ' issue ' was nomen collectivism, and overruled the 
 objection, (w) 
 
 And a variance between the affidavit actually sworn, and in which 
 the perjury was charged to have been committed, and the affidavit 
 stated in the indictment, by leaving out the letter s in the word 
 understood, was holden to be immaterial, (x) In a subsequent case, 
 the defendant was tried on an indictment for perjury, committed 
 in giving evidence as the prosecutor of an indictment against A., 
 for an assault ; and it appeared that the indictment for the assault 
 charged that the prosecutor had received an injury, 'whereby Ms 
 life was greatly despaired of;' but that in the indictment for per- 
 jury, the indictment for the assault being introduced in these words, 
 1 which indictment was presented in manner and form following, 
 
 (r) R. v. Benson, 2 Campb. 508. Lord (w) R. v. Smith, 1 F. & F. 98. 
 
 Ellenborough, C. J. ( x ) Beech's case, 1 Leach, 133. The in- 
 
 (s) R v. Powell, R. & M. N. P. R. 101. spection of a record is within the peculiar 
 
 (t) R. v. Bailey, 7 C. & P. 264, Wil- province of the Court ; and, therefore, if a 
 
 Hams, J. See R. v. Peace, 2 B. & A. 579. doubt arise as to any word upon a record, the 
 
 (u) Lavey v. R., 2 Den. C. C. 504. See Court and not the jury must resolve that 
 
 the indictment, 3 C. & K. 26 doubt. Bv Lord Ellenborough, C. J., in R. 
 
 (v) Peake's N. P C. 37. v. Hucks, 1 Stark. R 521. 
 
 vol. i. — 22
 
 338 Indictment. [book ii. 
 
 that is to say, and then set forth at length, did not recite the above- 
 mentioned passage correctly, but omitted the word ' despaired ;' upon 
 which the counsel for the defendant admitted that it was not neces- 
 sary to have recited the indictment for the assault ; but he contended 
 that the prosecutor, by the words ' in manner and form follotv- 
 .ing, that is to say,' had undertaken to recite it; and that, having 
 so done, he was bound to set it forth verbatim. But the learned 
 judge overruled the objection, and said that the word ' tenor ' had so 
 strict and technical a meaning as to make a literal recital necessary ; 
 but that by the words 'in manner and form following, that is to say,' 
 nothing more was made requisite than a substantial recital ; and that 
 the variance therefore, in the present case, was only matter of form, 
 and did not vitiate the indictment, (y) 
 
 An indictment for perjury alleged that the prisoner falsely swore to 
 ' in substance and to the effect following,' and then set out in totidem 
 verbis and in the first person a deposition of the prisoner in the 
 English language, but it appeared that the prisoner was examined 
 in Welsh through an interpreter, and that his examination was 
 translated into English, taken down in writing, and signed by the 
 prisoner ; and this written deposition was set out in the indict- 
 ment. It was submitted that the evidence ought to have been set out 
 in Welsh with a translation in English. Williams, J., ' In perjury it 
 is only necessary to prove " the substance and effect." The indict- 
 ment charges that the prisoner deposed and swore in substance and to 
 the effect there stated. It was not necessary in this indictment to 
 have set forth the deposition in totidem verbis ; still the substance and 
 effect of what the prisoner swore in the Welsh language may be 
 proved ; and if that is in substance and to the effect the same as is 
 stated in this indictment, that will be sufficient.' (z) 
 
 Where an indictment for perjury stated that on an inquiry before 
 two justices of the peace on an information under an excise statute, it 
 became a material question where a certain individual was at 4 A. M. 
 on the 2d of July, and that the defendant swore she had been in his 
 company from 2 in the same morning until 4, and on the trial for 
 perjury the evidence was that she had said she had been in his com- 
 pany from 11 until 4.30; Parke, J., doubted whether the evidence 
 supported the allegation, but on conference with Bolland, B., he in- 
 clined to think it did. (a) 
 
 If an indictment charge that the defendant swore in substance and 
 effect in a deposition, and the deposition be made jointly by him and his 
 wife, his statement following that of his wife, it will not be a variance. 
 The indictment stated that upon a certain information upon oath, en- 
 titled ' the information,' &c, the defendant wilfully deposed in sub- 
 stance and to the effect following : ' the defendant (meaning C. D.) I 
 am certain is one of the persons that assaulted and ill-treated my 
 wife,' &c. The information began, ' The information and complaint of 
 Jane, the wife of C. E. Grindall, and of the said C. E. Grindall, made 
 on oath,' &c. ' And first, the said J. Grindall for herself saith that 
 
 (?/) May's case, cor. Buller, J., 1799. The (2) R. v. Thomas, 2 C. & K. 806. 
 
 learned judge cited Beech's case, ante, note. (a) Anonymous, 1 Lew. 271. 
 
 See R. v. Spencer, R. & M. N. P. R. 97. 
 ] C. & P. 260.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 339 
 
 the defendant is one of the persons who assisted W. J. S. and others 
 in handcuffing and otherwise assaulting me on, &c' (Signed) 'J. 
 (irindall.' 'And the said C. E. Grindall sworn says, "the defendant, I 
 am sure, is one of the persons that assaulted and ill-treated my wife," ' 
 &c. It was objected that there was a variance, as the indictment set 
 forth the deposition as sworn by the defendant alone ; but it was held 
 that, as what the defendant swore was set out in substance, it was 
 sufficient, (b) 
 
 Where an indictment alleged that the defendant committed perjury 
 on the trial of one B., and that B. was convicted, and it appeared by 
 the record when produced that the judgment against B. had been 
 reversed upon error after the bill of indictment against the defend- 
 ant had been found, it was held that this was no variance, (c) ' 
 
 Where an indictment for perjury alleged that an officer of excise 
 went before two justices of the peace, and gave the said justices to 
 understand and be informed that ' W. Stock, victualler, being a brewer of 
 beer or ale for sale,' did neglect to make a declaration of the quantity 
 of beer brewed ; and the words in italics were not found in the 
 information when produced ; it was held that this was a fatal variance, 
 as the meaning of the indictment was that ' Stock being a brewer 
 neglected.' (d) 
 
 If an indictment use a word of equivocal meaning, the meaning in 
 which it is used must be collected from the context of the sentence in 
 which it occurs. An indictment for perjury alleged that a commission of 
 bankruptcy was issued against the defendant, under which he was duly 
 declared bankrupt, and that afterwards he preferred a petition to the 
 chancellor, stating (amongst other things) that a commission had 
 issued, that the petitioner, on the 1st of March, 1821, was declared 
 bankrupt, and that at the several meetings before the commission the 
 petitioner declared that the bill of exchange (on which the commis- 
 sion had issued) was not due, &c. But the allegation in the petition 
 was that at the several meetings before the commissioners the petitioner 
 declared that the bill was not due. It was contended that the words 
 ' commission ' and ' commissioners ' were not convertible terms ; that 
 the word ' commission ' denoted the authority under which the parties 
 acted, and therefore the variance was fatal. Abbott, C. J., ' The objection 
 is that there is a variance between the petition set forth in the indict- 
 ment and that which is given in evidence at the trial. Now, in a 
 proceeding of this kind it is not necessary to set out in the indict- 
 ment verbatim the tenor of the petition ; it is sufficient if it be set out 
 truly in substance and effect. The petition, as set out in the indict- 
 ment, purports that at the several meetings before the commission, the 
 petitioner declared in the hearing of the said assignee that the bill of 
 exchange given to G. Drowley for the debt was not due at the time 
 when he struck the docket. Now the allegation in the petition, which 
 was proved in evidence, was that at the several meetings before the 
 commissioners the petitioner declared so and so, and the question is 
 whether that is a fatal variance. The word " commission " is one of 
 equivocal meaning ; it is used either to denote a trust or authority 
 
 ib) R. v. Grindall, 2 C. & P. 563. (c) R. v. Meek, 9 C. & P. 513. See R. 
 
 Abbott, C. J. v. Burraston, post, \t. 356. 
 
 (d) R. v. Leech, 2 Man. & Ry. 119.
 
 340 Indictment. [book ii. 
 
 exercised, or the instrument by which the authority is exercised, or 
 the persons by whom the trust or authority is exercised. And if it 
 may denote the persons exercising the authority, we must collect from 
 the context of the sentence in which the words " before the commis- 
 sion " occur, and of the other parts of the petition, whether it was 
 used in that sense or not.' After stating the indictment the chief 
 justice proceeded, ' Now, if the word commission as there used was 
 intended to denote the commission itself, it would follow that the 
 several meetings took place before any commission issued ; but that 
 is impossible, because in that case the petitioner could not have made 
 his declaration in the hearing of the said assignee. Then, if that can- 
 not be the meaning of the word commission, we must construe it in 
 the other sense, which it is capable of bearing, namely, as denoting the 
 persons to whom the authority was given ; and if it be so construed, 
 there was no variance between the petition set forth in the indictment 
 and that which was given in evidence ; the consequence is, that there 
 must be judgment for the crown.' (e) 
 
 In an indictment for perjury the averment stated that the pris- 
 oner swore he saw W. ' about fifteen minutes after the hour of 11 
 o'clock in the forenoon' whereas it was proved that he had sworn 
 that he saw W. about a quarter past eleven on the day in question, 
 without stating whether it was the forenoon or the afternoon. Day, 
 J., held that the averment in the indictment was not proved, and 
 directed an acquittal. (/) 
 
 The 9 Geo. 4, c. 15, s. 1, authorizes the Court to cause the record in 
 an indictment for any misdemeanor, when any variance shall appear 
 between any matter in writing or in print produced in evidence, and 
 the recital or setting forth thereof upon the record, to be amended. 
 
 In a case where a complaint having been made ore tenus by a soli- 
 citor, before the chancellor in the Court of Chancery, of an arrest in 
 returning home after the hearing of a cause, the indictment stated 
 that, ' at and upon the hearing of the said complaint,' the defendant 
 deposed, &c. ; and this was holden to be a sufficient averment that the 
 complaint was heard, (g) And it has been holden that an indictment 
 for perjury, assigned on an affidavit sworn before the Court, need not 
 state that the affidavit was filed of record, or exhihited to the Court, 
 or in any manner used by the party. Qi) 
 
 An indictment for perjury may state the trial to have taken place 
 either before the judge, who in fact tried the case, or before the judges 
 before whom it is considered in point of law to have taken place. There- 
 fore an indictment for perjury, stating the trial to have been before two 
 judges, but the oath to have been taken before one of them, is good. 
 The indictment alleged the trial before both judges then in commis- 
 sion, and then alleged that the prisoner was sworn before one of the 
 justices aforesaid ; and, on a case reserved on the question whether 
 the oath ou^ht not to have been alleged to have been taken before 
 
 (e) R. v. Dudman, 4 B. & C. 850. wise when the proceeding is under the stat- 
 
 (/) E. v. Bird, 17 Cox, C. C. 387. ute of Eliz. Stark. Orim. Plead. 121. And 
 
 (g) R. v. Aylett, 1 T. R. 70. see 3 Stark. Evid. 857, citing R. v. Tay- 
 
 (h) R. v. Crossley, 7 T. R. 815. Nor is lor, Skin. 403, where it was held that the 
 
 it necessary to prove such facts. Id. ihid. hare making of the affidavit without pro- 
 
 And see the cases, post. But it is other- ducing or using it is not sufficient.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 341 
 
 both justices, the judges were unanimously of opinion that the con- 
 viction was right, (i) So an indictment for perjury on the trial of a 
 cause at the sittings after term, stating the trial to have been before 
 the puisne judge, who in fact tried the cause, is good, although the 
 postea states the trial to have been before the chief justice. An in- 
 dictment for perjury, charged to have been committed on a trial at the 
 sittings after term in London, alleged the trial to have taken place 
 before Littledale, J. ; and on producing the record it did not appear 
 before whom the trial took place, but the postea stated it to have 
 been before the lord chief justice ; in point of fact, however, the trial 
 took place before Littledale, J. ; and it was objected that this was a 
 variance ; it was answered that there was no reference in the indict- 
 ment to the record, and no prout patet per record ion : it was merely 
 stated that the trial took place before Littledale, J., and that was 
 proved. Lord Tenterden, C. J., ' On a trial at the assizes the postea 
 states the trial to have taken place before both justices ; it is 
 considered in law before both, though in fact it is lief ore one only, 
 and I am not aware that the postea is ever made up here differently 
 when a judge of the Court sits for the chief justice. I cannot stop 
 the case upon such an objection ; you may have leave to move upon 
 this point in case it shall become necessary.' (/) 
 
 Where a trial was had in the old county court it was necessary to 
 allege that the trial was had before the suitors, and to set out the 
 names of the suitors ; and therefore it was erroneous to allege that 
 the trial took place before the sheriff and suitors. (&) 
 
 The indictment alleged that an issue was tried before the sheriff of 
 the county of Durham, by virtue of a writ to him directed, and that 
 upon the trial of that issue the prisoner was duly sworn before the 
 said sheriff. By the writ of trial, return, and the record, the issue did 
 appear to have been tried before the sheriff of Durham ; but by the 
 parol evidence it appeared that the issue was not, tried before the 
 sheriff or under-sheriff, and that neither of them was present, but that 
 it was in fact tried before Mr. S., who was stated to be the deputy of 
 the high-sheriff ; but no appointment of Mr. S. was put in, nor was 
 his office more particularly described. Wightman, J., was disposed to 
 direct an acquittal, on the ground that the variance was fatal ; but, 
 upon being informed that it was the invariable practice when writs of 
 trial were directed to the sheriff, to make up the record as if the trial 
 had been before him, though in fact it was before some deputy, he 
 thought it better to allow the trial to proceed, and the prisoner was 
 convicted; and, upon a case reserved, the majority of the judges held 
 that the conviction was right. (/) 
 
 So where an indictment for perjury alleged that upon the execution 
 of a writ of trial directed to the sheriffs of the city of London, certain 
 issues came on to be tried and were tried before the sheriffs of London, 
 and that the defendant came before the said sheriffs, and before the 
 said sheriffs was duly sworn, and it appeared that the trial took place 
 before the secondary and not before the sheriffs, the Court of Queen's 
 
 (i) R. v. Alford, 1 Leach, 150. See this (k) Jones v. Jones, 5 M. & W. 523. See 
 
 case, post, p. 343. R. v. Fellowes, 1 C. & K. 115. 
 
 (j) R. v. Coppard, Moo. & M. 118. 3 C. (/) R. v. Dunn, 2 M. C. C. R. 297. 1 
 
 & P. 59, Acquittal. C. & K. 730.
 
 342 Indictment. [book ii. 
 
 Bench held, on the authority of the preceding ease, (m) that the trial 
 was properly alleged to have takeii place before the sheriff's, (n) 
 
 Where an indictment alleged a trial for felony to have taken place 
 at a session of oyer and terminer and gaol delivery, before Lord Camp- 
 bell and Williams, J., and the trial had in fact taken place before 
 Greaves, Q. C, in the grand-jury room at Stafford during the assizes, 
 and his name was not mentioned in the copy of the record which was 
 produced ; but the usual words ' and others their fellows, justices 
 assigned, &c.,' were therein, and it appeared that Greaves, Q. C, was a 
 justice of the peace for Staffordshire. It was objected that there was 
 nothing to show that Greaves, Q. C, had jurisdiction to try the case. 
 Talfourd, J., said that if the trial had taken place in this Court before 
 a person in the robes of a judge of assize, and acting as a judge of assize, 
 he would not require any proof of his authority ; but Mr. Greaves sat 
 in the grand jury room, and being a magistrate for the county, might, 
 it was just possible to suppose, have acted in that capacity. There 
 was nothing on the face of the documents to show that he had any 
 authority ; he therefore thought the objection so formidable that he 
 would, if necessary, reserve the point, (o) 
 
 An indictment alleged that a cause was depending, and that an 
 application was made to Lord Denman, the Lord Chief Justice of Her 
 Majesty's Court of Queen's Bench, and the other judges of the said 
 Court, and the said judges granted a rule nisi, which rule, or an office 
 copy thereof, was set out; and Parke, B., held that the indictment 
 was bad, as the application could only be made to the Court, and it 
 ought to have been so stated, and it did not appear by this indictment 
 that the application was made to a tribunal having jurisdiction to 
 grant it. (p) 
 
 If an indictment for perjury committed on a trial before the sessions 
 alleges an adjournment to have been made by certain justices, and the 
 record states it to have been made by other justices, this is a variance ; 
 but the defect may be cured by proving that in fact the adjournment 
 was made by the justices named in the indictment. An indictment 
 for perjury on the trial of an indictment for an assault alleged an 
 adjournment to have been made by Const, and A. B., and others their 
 fellows, justices, &c. The examined copy of the record of the convic- 
 tion stated the adjournment to have been made by Const, and E. F., 
 and others, their fellows, justices, &c. It was contended that this 
 was a fatal variance ; and Abbott, C. J., held that it was ; but that the 
 defect might be cured by other evidence, as by calling some person 
 who could state that he was present and saw the justices named in 
 the indictment present on the day in question, (q) 
 
 (»/) R. v. Dunn. ness from the office of the clerk of the peace 
 (,<) R. v. Schlesinger, 10 Q. B. 670. produced a minute book, which contained 
 (o) R. v. Child, 5 Cox, C. C. 197. But an entry, not drawn up in any formal man- 
 see R. v. Dunn, supra. ner, of the names of the particular justices 
 (p) R. v. White, 2 Cox, C. C. 232. It who were present at the day of adjournment 
 was suggested that the rule ended as usual mentioned in the indictment, and amongst 
 'By the Court;' which cured the defect. whom were all the names mentioned in the 
 But Parke, B., held that that was not so ; indictment ; these minutes were made by a 
 what was set out was the 'rule or an office clerk in the same office, of the name of 
 copy thereof.' Richards, whose duty it appeared to be to 
 (q) R. v. Bellamy, R. & M. N. P. R. attend at the quarter sessions, for the pur- 
 171. In order to remedy the defect, a wit- pose of making these entries at the time ;
 
 chap, xil] Of Perjury and. Subornation of Perjury. 343 
 
 It is sufficient to state in the indictment that the defendant saw 
 duly sworn. (/•) In a case where it was averred that he was sworn 
 on the Gospels, and he appeared to have been sworn according to the 
 custom of his own country, without kissing the book, it was consid- 
 ered as a fatal variance; though it was holden that the averment 
 was proved by its appearing that he was previously sworn in the ordi- 
 nary mode, (s) An indictment for perjury in a cause tried at the 
 assizes was holden good, although it alleged the oath to have been 
 taken before one only of the judges in the commission, and the nisi 
 prius record imported that the trial was before the two judges of 
 assize, (t) 
 
 An indictment at common law, which charged that the defendant 
 'falsely, maliciously, wickedly, and corruptly swore,' &c, was holden 
 sufficiently to imply that the offence was committed wilfully; (u) but 
 it was considered at the same time that, in an indictment on the 5 
 Eliz. c. 9, the offence must be laid expressly to have been wilfully 
 committed, (v) 
 
 The indictment should aver that the defendant ' wilfully and 
 corruptly'' swore, and every count should expressly state that the 
 defendant was sworn, and the fact of his having been sworn cannot 
 be taken by intendment. The first count stated that the defendant 
 on the trial of an indictment against J. H., intending to injure J. H., 
 and to cause him to be wrongly convicted, appeared as a witness and 
 was sworn, and ' then and there falsely and maliciously gave false 
 testimony against J. H., by then and there deposing and giving evi- 
 dence,' &c. The fifth count, the only one that differed materially 
 from the first, alleged that by means of the false testimony in the first 
 count mentioned, J. H. was found guilty ; that a rule nisi for a new 
 trial was granted ; that the defendant, intending to hinder the said 
 rule from being made absolute, came before a commissioner and was 
 sworn, and being so sworn, wickedly, wilfully, and corruptly did 
 
 but Richards was not called as a witness, whether one commissioner of assize alone 
 and there was no evidence to show whether had competent authority to administer the 
 he was present on the particular day further oath, and conceived the indictment ought to 
 than the entry itself. In the same book on have alleged the oath to have been taken 
 the opposite page to the entry already stated, before both the judges in the commission, 
 was another, drawn up by the witness who but on a case reserved the judges were 
 produced the book ; and this was in the unanimous that the indictment was right. 
 form of a record, and was in fact a summary See this case, ante, p. 341. But as to a record 
 of all the names of the justices attending in the Crown Court, see R. v. Lincoln, 
 upon the quarter sessions upon each day ante, p. 334. In R. v. Deman, 2 Ld. Raym. 
 during the sessions, but it did not dis- 1221, an exception was taken to an indict- 
 tinguish who was present upon any particular ment, that it stated the trial at which the. 
 day; amongst these names also were the oath was taken to have been before the Lord 
 justices mentioned in this indictment. But Chief Baron and the associate, but stated 
 Abbott, C. J., held that this evidence was the oath to have been before the Chief 
 not sufficient to supply the defect ; the Baron, without the associate ; and also, 
 minutes made by Richards were not a record, that the assignment of perjury differed from 
 or in the nature of a record, and the entry the oath, being before the Chief Baron and 
 on the opposite page was insufficient, as it associate. But the objections were over- 
 did not give the names of the justices who ruled ; and the. Court held that the asso- 
 were present on the particular day. ciate need not be mentioned in every part of 
 
 (r) R. v. M'Carthur, Peake's N. P. C. the indictment where the Chief Baron w 7 as 
 
 155. Lord Kenyon, C. J. mentioned. 
 
 (s) Id. ibid. (u) As to the offence being tviJful, see 
 
 (t) R. v. Alford, 1 Leach, 150. MS. ante, p. 293. 
 Bayley, J. ; Eyre, B., doubted on the trial (v) Cox's case, 1 Leach, 71.
 
 344 Indictment. [book ii. 
 
 depose, swear, and make affidavit in writing, in substance that the 
 evidence which he, J. S., had given on the said trial was true; 
 whereas the evidence which the said J. S. had given on the said trial 
 was not true, hut was false in the particulars in the said first count 
 of this inquisition assigned and set forth. The defendant having 
 been convicted, a rule was obtained for arresting the judgment, and 
 after argument, Abbott, C. J., delivered the judgment of the Court as 
 follows : ' I am of opinion that this rule must be made absolute. As 
 to the first class of counts, .the objection is that they do not charge 
 that the defendant swore wilfully or corruptly. Every definition of 
 perjury is swearing wilfully and corruptly that which is false. 
 Whether the word maliciously might supply the place of either wil- 
 fully or corruptly, it is not necessary to determine, for neither of 
 those words is found in the counts in question, and Cox's case, (w) 
 which has been referred to, proves at all events that such counts are 
 insufficient. I now come to the consideration of the last count. It 
 is in a form perfectly novel ; it was intended to allege perjury in an 
 affidavit made in this court. In the ordinary course of pleading, the 
 first step would have been to charge that there had been a trial, and 
 that the defendant was sworn as a witness ; the second, that he swore 
 such and such things ; the third, that the matter w T as false, and so on. 
 Here there is no distinct averment that the defendant was sworn as a 
 witness, or of what he swore. But it is said that the fact of his hav- 
 ing been sworn must be taken by intendment. Were we to do that, as 
 we are desired to do, in support of this indictment, we should furnish 
 a precedent for a very loose and insufficient mode of charging a very 
 serious offence, which has always hitherto been required to be charged 
 with great certainty and particularity. I think that these novel at- 
 tempts in pleading are not to be encouraged, and that the judgment 
 must be arrested.' (x) 
 
 Where an indictment for perjury alleged that the prisoner ' feloni- 
 ously ' swore to the matter on which the perjury was assigned instead 
 of ' falsely,' it was held that the indictment was bad in substance, 
 and that the words ' corruptly, knowingly, wilfully, and maliciously,' 
 did not supply the defect : a man might swear ' corruptly ' under some 
 corrupt influence, and yet swear the truth ; so with respect to the 
 word ' knowingly ; ' and he might swear ' wilfully and maliciously ' to 
 gratify some malicious feeling, but yet it might not be ' falsely.' Nor 
 did the conclusion that the prisoner ' in manner and form aforesaid 
 did commit wilful and corrupt perjury ' cure the defect ; for the mean- 
 ing of that was, that the prisoner committed the offence in the man- 
 ner stated, and, that statement being defective, the indictment was 
 bad. (//) 
 
 Variance in allegation of competency of court. — It must appear 
 or (z) be alleged in the indictment that the person by whom the oath 
 was administered had competent power to administer it. Thus upon 
 
 (w) Supra. must be used in an indictment on that 
 
 (.t) R. r. Stevens, 5 B. & C. 246. The statute. C. S. G. 
 5 Eliz. c. 9, s. 6, mile, p. 320, uses both the (y) R. v. Oxley, 3 C. & K. 317. Cre=s- 
 
 words, 'wilfully and corruptly,' and there- well, J., after consulting Alderson, B. 
 fore it should seem that both these words (z) See R. v. Dunning, L. R. 1 C. C. R. 
 
 290.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 345 
 
 an indictment for perjury before a justice in swearing that T. S bad 
 sworn twelve oaths, where the charge as stated did not import that 
 the oaths were sworn in the county for which the justice acted, Eyre, J., 
 arrested the judgment; because, as the charge did not so import, the 
 justice had no jurisdiction to administer the oath in question to tin- 
 defendant, (a) 
 
 Where an indictment for perjury alleged that two judges had 
 'sufficient authority' to administer the oath, it was doubted whether 
 it was sufficient, as the 23 Geo. 2, c. 11, s. 1, has only 'competent 
 authority.' (b) 
 
 An indictment for perjury alleged that W. U. had done business as 
 an attorney for the defendant and J. I., on the retainer of the defend- 
 ant, and that afterwards, to wit, on the 7th of August, 1844, the said 
 W. U. delivered a bill of costs to the defendant and J. I., and that no 
 application was made to the court, in which the said business was 
 done, by the defendant or J. I. within one month after the delivery of 
 the bill, nor did the said court or any judge within one month next 
 after the delivery of the said bill refer the said bill to taxation ; and 
 that after the expiration of one month, to wit, on the 25th of April, 
 1845, W. U. applied to one of the judges of the said court to refer the 
 said bill to be taxed, and thereupon on the said 25th day of April the 
 said judge issued a summons, requiring the defendant and J. I. to 
 show cause why the said bill should not be referred to the master to 
 be taxed ; and that before showing cause the defendant went before a 
 commissioner and made an affidavit denying the retainer of the said 
 W. U. It was objected that ' month ' in the indictment meant lunar 
 month ; and as the jurisdiction to tax the bill on the application of 
 the attorney did not arise under the 6 & 7 Vict. c. 73, ss. 37 & 48, 
 until after one calendar month after the delivery of the bill, the 
 indictment did not show jurisdiction to issue the summons. But the 
 Court of Exchequer Chamber held that the objection ought not to 
 prevail ; and Parke, B., in giving the judgment said, ' Although the 
 word " month " would, in our opinion, if unexplained, signify lunar 
 month, enough is stated to show the judge's jurisdiction ; for, as the 
 dates are material, they may be taken without the videlicet, and taken 
 to be true. But I do not think the indictment would be bad even if 
 it contained nothing to show that a calendar month had elapsed be- 
 fore the summons issued , for the judge had general jurisdiction, and 
 must be taken to have had jurisdiction in the particular case unless 
 the contrary appear. I think in such a case the jurisdiction would 
 be intended; but it is not necessary to decide the point.' (c) The 
 third and fourth counts of the same indictment omitted to allege that 
 no application had been made to the court or a judge to tax the bill 
 by the defendant or J. L, and it was urged that these counts were bad 
 by reason of such omission, as by sec. 37 of the 6 & 7 Vict. c. 73, the 
 
 («) R. v. Wood, Exeter, 1723. MS. (c) Ryalls v. R. 11 Q. B. 178. The 
 
 Bayley, J. Court of Queen's Bench had held that as all 
 
 (b) R. v. Child, 5 Cox, C. C. 197. Tal- the counts referred to the Act of Parlia- 
 
 fourd, J., declined to stop the case, but ment, the word ' month ' in the indictment 
 
 would have reserved the point had not the must be construed according to the clause in 
 
 prisoner been acquitted. This enactment the Act to mean calendar month, 
 is now repealed, see ante, p. 330.
 
 346 Indictment. [book ii. 
 
 jurisdiction of the courts to refer such a bill to taxation upon the ap- 
 plication of the attorney depended on the fact that no application had 
 been made within the month by the party chargeable; but the Court 
 of Queen's Bench held that the judge had jurisdiction, after the ex- 
 piration of the month which was alleged in the counts, to issue a 
 summons at the instance of the attorney, calling on the party charge- 
 able to show cause why the bill should not be taxed, although it 
 might be true that if it had appeared on showing cause that a previous 
 application within the month had been made by the party chargeable, 
 the judge might not have had jurisdiction to make an order for taxa- 
 tion. Therefore the affidavit of the defendant, made after such sum- 
 mons, was made in the course of a judicial proceeding, (d) 
 
 Where a statute requires an act to be done by justices of the peace 
 acting for a particular division in petty sessions, an indictment for 
 perjury committed before two such justices must allege that they were 
 acting for such division, but need not aver that they were assembled 
 in petty sessions, (e) 
 
 Where an indictment for perjury stated that the prisoner, mali- 
 ciously intending to subject W. Mortiboy to the punishments of felony 
 and larceny, went before J. C. and H. H., two justices of the peace, and 
 was sworn (J. C. and H. H. having competent power, &c), and deposed 
 in substance that on Wednesday last he (the prisoner) was in W. M.'s 
 Peg Alley, and that he (the prisoner) put his hand into his watch fob, 
 and took out a £5 note to make a bet with W. M., and put it into his 
 breeches pocket. That W. M. collared him, and knocked him down, 
 and put his knee on him, and then put his hand into his (the pris- 
 oner's) pocket, and took the said £5 note, &c. It was submitted that 
 the indictment was bad, as it did not show that there was any pro- 
 ceeding pending before the magistrate, or that this was a deposition 
 on any charge of felony. Coleridge, J., ' There might be cases of an 
 affidavit where there was no charge, and no prosecution, and, indeed, 
 no cause in hand. It might have been averred that the defendant 
 made a charge, and that in support of that charge the deposition was 
 made. If the defendant had merely come before the magistrates to 
 swear this, without more, it would not be perjury. I think that the 
 indictment is not sufficient.' (/) 
 
 (d) Ibid. averred and proved that the party made the 
 (c) R. v. Rawlings, 8 C. & P. 439, J. A. charge, and in support of it made the de- 
 Park, and Patteson, JJ., after time taken position. See Caudle v. Seymour, 1 Q. B. 
 to consider the points. 889, where some strong observations were 
 (/) R. v. Pearson, 8 C. & P. 119. When made against the propriety of such a prac- 
 the objection was first made, Coleridge, J., tice. It may, however, be questionable 
 said, ' This might have been the original in- whether such a mode of taking the ihfor- 
 formation. Might it not be that this state- mation would afford any ground of defence 
 ment to the magistrates was the charge?' to the party who was sworn to its truth. It 
 And it is conceived that this was the cor- may be observed, also, that although it may 
 rect view of the case. In cases of felony admit of doubt whether this deposition dis- 
 and misdemeanor it is a very common prac- closed a felony, yet as it clearly showed an 
 tice for the party complaining to state the assault, the magistrate had jurisdiction to 
 facts to the magistrate's clerk, who takes administer an oath. In R. v. Bradley, (Staf- 
 them down in the shape of an information ; ford Spr. Ass. 1844, MSS. C. S. G.) Cole- 
 such information is then taken to the ridge, J., said, that in the discussion of R. 
 magistrate, and the complainant sworn to v. Gardiner, infra, considerable doubts were 
 the truth of it : in such cases it is conceived entertained among the judges whether R. v. 
 the making the charge before the magistrate, Pearson was rightly decided. See K. v. 
 and the making the deposition, is one and Crawley, 12 Cox, C. C. 162 ; R. v. Lewis, 
 the same thing ; it could not, therefore, be 12 Cox, C. C. 163.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 347 
 
 The first count stated that the prisoner, meaning to subject C. F. E. 
 to the punishment provided for persons guilty of felony, &c, wen! and 
 was sworn before a justice of the peace for the county having compe- 
 tent authority to administer the oath, and being so sworn then upon 
 a certain information and examination, entitled ' County of Oxford, to 
 wit : the information and examination of R. G-. taken upon oath before 
 me, &c.,' falsely, &c, did depose, &c. The whole of the information 
 was then set out ; it contained the following passage : ' I then went 
 and got over Mrs. Calcut's wall into the close, and went and looked 
 over the wall between her close and Mr. E.'s ox-pens. I then saw the 
 donkey standing with its side towards and near to the manger of the 
 second pen, with her head towards Mrs. Calcut's close. Mr. C. E. was 
 standing behind her. I saw that he had the flap of his trowsers un- 
 buttoned and hanging down. I saw the corner of the inside of it ; he 
 was rather on the move ; he appeared to be on the donkey (meaning 
 that he appeared to the said R. G. to be in the actual commission of 
 that detestable crime, &c). He remained in that position about five 
 minutes, when the donkey kicked Mr. C. E.'s leg ; upon which he 
 moved aside, turning his back rather more towards me than it had 
 been, and stooped down to rub his leg ; he then lifted himself up 
 again, and turned around with his face towards me. I then saw his 
 private parts exposed : I saw him tuck up his shirt and button up his 
 trowsers : the upper part of them as well as the flap had been unbut- 
 toned.' This count contained no averment as to the materiality of any 
 of the matters deposed to. It contained several assignments of per- 
 jury. Those on which the prisoner was found guilty were as follows : 
 ' Whereas in fact the said C. F. E. then and there had not the flap of 
 his trowsers unbuttoned or hanging down. And whereas the said C. 
 F. E. had not then and there, or at any other time or place whilst 
 standing behind the said donkey, or any other donkey, the flap of 
 his trowsers unbuttoned, and hanging down, nor had the trowsers 
 the said C. F. E. then wore any flap whatsoever. And whereas 
 the said C. F. E. did not appear to the said R. Gr. to be, nor 
 was he, then and there, or at any other time or at any other 
 place, in the actual commission of that detestable crime, &c, with 
 the female donkey aforesaid, or with any other animal, or in any 
 other manner whatsoever. And whereas the said C. F. E. did not re- 
 main in that situation for about five minutes, nor did the said donkey 
 kick the said C. F. E.'s leg, nor did,' &c, &c. Here followed a number 
 of other averments, which were not proved for want of two witnesses. 
 The third count was the same as the first, except that it stated the 
 prisoner's intention to be, to subject C. F. E. to the punishment in- 
 flicted on persons guilty of misdemeanors, and the innuendo was, that 
 C. F. E. was attempting to commit the offence. The seventh count 
 stated, that the prisoner, intending to aggrieve C. F. E., ' came before 
 Mr. Rawlinson, and was sworn (he having authority), and falsely, &c, 
 did depose, swear, charge, and give the said justice to be informed that 
 the said C. F. E. upon, &c, had a venereal affair with a certain animal 
 called a donkey, and feloniously and against the order of nature did 
 commit and perpetrate that detestable and abominable crime, &c, with 
 the said donkey. And further (it being then and there material to the 
 inquiry into the said charge and information to know the state of
 
 348 Indictment. [book ii. 
 
 the said C. F. E.'s dress at the time the alleged offence was so charged 
 to have been committed as aforesaid) that he, the said E. G., then and 
 there saw that the said C. F. E. then and there had the flap of his 
 trowsers unbuttoned and hanging down, and that he, the said E. G., 
 then and there saw the inside of the said flap ; whereas the said E. G. 
 did not then and there, or at any time, or at any place, see the said 
 C. F. E. at any time in the act of having a venereal affair with a 
 donkey, or with any other animal whatsoever, nor did the said C. F. E. 
 then, or at any time, or at any place, or in any manner commit, nor 
 was the said C. F. E. at any time, or at any place, or in any manner 
 in the act of committing that detestable and abominable crime. And 
 whereas the said E. G. did not then and there see the flap of his, the 
 said C. F. E.'s, trowsers unbuttoned or hanging down, nor was the flap 
 of the said C. F. E.'s trowsers then and there unbuttoned or hanging 
 down, nor did the said E. G. then and there see the inside of the flap 
 of the said trowsers.' The information signed by the prisoner was 
 put in,'and it was proved that he was duly sworn, and that the charge 
 was dismissed. The two witnesses produced to the facts were C. F. E., 
 a lad of fifteen, and his elder brother, J. H. E. They swore that they 
 went together to the field, J. H. E. having a gun ; that they spoke of 
 going to Chipping Norton, and that C. F. E. went to see whether the 
 donkey was able to go to Chipping Norton, and parted from his brother 
 for that purpose ; that he was absent three minutes ; that the trowsers 
 he had on, which were produced in court, had no flap. These were 
 the only facts to which they both spoke. C. F. E. fully negatived 
 what the prisoner had sworn to, in a manner quite satisfactory to the 
 jury. J. H. E. also stated that he was about forty yards from the ox- 
 pens ; that he had his back towards them ; that if he had turned 
 round he could have seen them and the wall, and must have seen if 
 any one was looking over it, but he did not turn round. It was ob- 
 jected, first, that the first and third counts did not distinctly show 
 any proceeding pending before the magistrate ; that they ought to 
 have averred directly that a charge was pending. B. v. Pearson, (g) 
 But Patteson, J., thought that case distinguishable, because of the 
 words ' upon an information and examination,' &c. (h) Second, that 
 the flap of the trowseis being unbuttoned did not appear on the face 
 of the counts to be material, and there was no averment of its ma- 
 teriality. The same objection applied to the precise time of five 
 minutes. Third, that the assignment of perjury as to the main 
 charge was too large, because it denied all animals and all times and 
 places. Fourth, as to the first count, that the language used by the 
 prisoner, as there set out, did not import that a felony was committed, 
 but only an attempt. These objections were urged in arrest of judg- 
 ment. Fifth, as to the seventh count, the first objection to the first 
 and third counts was urged, Sixth, to the same count it was urged 
 that, although in that count the state of C. F. E.'s dress was averred 
 to lie material, yet that by such averment was meant, not whether 
 the flap of his trowsers was unbuttoned, but the trowsers generally. 
 Seventh, that the seventh count alleged that the prisoner charged 
 
 346. form as the one in 4 Wentw. 244, 2 Chitty's 
 
 (r/) Ante, p. 346. form as the one 
 
 (h) The present indictment is in the same Crim. Law, 443
 
 chap, xii.] Of Perjury and Subornation of Perjury. 349 
 
 the capital offence, whereas, by his information, he appeared to have 
 charged only an attempt. The sixth and seventh objections were 
 taken before the verdict, and did not apply in arrest of judgment, as 
 was also the objection whether the evidence of J. H. E. went to any 
 material fact sufficient to satisfy the rule as to two witnesses in cases 
 of perjury. On all these questions, the learned judge requested the 
 opinion of the judges, and all the judges present held the conviction 
 good on the seventh count, and most of them appeared to think it 
 good on all the others, (i) 
 
 Where an indictment stated that ' heretofore, to wit, on, &c, at, &c, 
 before M. G. and T. H. H., two of the justices, &c, came one J. Osborne, 
 and then and there exhibited to and before the said M. G. and T. H. H., 
 so being such justices as aforesaid, a certain information upon oath, 
 and then and there informed the said justices ' that certain quantities 
 of stolen silk were found in a certain house ; it was held, that this 
 allegation did not sufficiently show that the oath was taken before 
 the said justices, as it was consistent with the allegation that the oath 
 might have been taken before some other justices. (/) 
 
 Where a count, which charged perjury in an affidavit to hold to bail, 
 made since the 1 & 2 Vict. c. 110, did not state that a writ of sum- 
 mons had been issued when the affidavit was sworn, it was held good ; 
 for the affidavit may be sworn before the issuing of the writ. (k) 
 
 Where an indictment for perjury committed under the Interpleader 
 Act set out the issues joined in the Court of Exchequer between A. B. 
 and C. D., the trial at Westminster, the verdict for the plaintiffs, the 
 judgment, the writ of fieri facias consequent thereon to the sheriff of 
 Somersetshire, dated the 5 th of June, 1841, the warrant, the seizure of 
 the goods of C. D., and the notice on the part of the prisoner to the 
 sheriff not to sell the goods so seized, but to deliver them up to him, 
 the same being his property ; and then charged that the prisoner came 
 before a commissioner, and produced an affidavit in writing, and swore 
 to the truth of the matter contained in it ; and the affidavit was, that 
 the prisoner having heard that C. D. had certain goods (those seized 
 under the fieri facias of the 5th of June), bought them and paid for 
 them on the 1st of June. The sale and purchase were then nega- 
 tived, and this was the perjury charged. It was submitted that, as 
 there was no allegation that any application had been made under the 
 Interpleader Act, it did not appear that the affidavit was made in a 
 judicial proceeding ; and Coleridge, J., held the objection fatal ; as for 
 anything that appeared, this was a voluntary oath, and not made in 
 any judicial proceeding. (I) 
 
 Where an indictment for perjury alleged that a certain cause had 
 been depending in the King's Bench, and that such proceedings were 
 had, that a writ of inquiry was duly issued out of the said court, 
 directed to the sheriffs of London to inquire, &c, and that the said 
 sheriffs should make appear the inquisition which they should take 
 thereof before the justices of our said Lord the King at Westmin- 
 ster, and then assigned perjury on the taking of the said inquisition 
 
 (i) R. v. Gardiner, 2 M. C. C. R. 95. (k) King v. R. 14 Q. B. 31. 3 Cox, C. C. 
 
 8 C. & P. 737. 561. 
 
 (j) R. v. Goodfellow, MSS. C. S. G. and (/) R. v. Bishop, C. & M. 302. 
 
 C. & M. 569. Patteson, and Ciesswell, JJ.
 
 350 Indictment. [book ii. 
 
 before the secondary ; the Court of King's Bench seem to have been 
 of opinion that the indictment was bad, as it appeared that the per- 
 jury was committed coram non judice ; for the writ of inquiry was 
 issued out of the King's Bench, and made returnable in the Common 
 Pleas, and therefore the secondary had no jurisdiction to administer 
 the oath, (m) 
 
 An indictment for perjury committed in the preliminary proceed- 
 ings before the commissioners of bankruptcy under 6 Geo. 4, c. 16, to 
 ascertain whether the party should be adjudged bankrupt or not, it 
 seems would be good, although it omitted to state that there was a 
 good petitioning creditor's debt, (u) 
 
 In an indictment for perjury in an affidavit it is sufficient to state 
 that the defendant was sworn before A. B. (A. B. having power to ad- 
 minister an oath) without stating the nature of A. B.'s authority. 
 An indictment for perjury in an affidavit alleged that the defendant 
 did take his corporal oath before F. J. Chell (he the said F. J. 
 Chell then and there having sufficient and competent power and au- 
 thority to administer the said oath to the defendant in that behalf) 
 and that the defendant did before the said F. J. Chell, as such commis- 
 sioner as aforesaid, depose, &c. It was contended, in arrest of judgment, 
 that the indictment was bad, as it did not describe the official station 
 of the person before whom the defendant was sworn. It was, indeed, 
 stated that he made affidavit of certain matters before F. J. Chell, as 
 such commissioner as aforesaid ; but he had not been before mentioned 
 as a commissioner, and therefore that averment could not cure the 
 defect. The 23 Geo. 2, c. 11 (o) made it unnecessary to set out the 
 commission of the person before whom the oath was taken, but that 
 did not dispense with the necessity of showing the nature of his office. 
 Abbott, C. J., ' Looking at the Act of Parliament, 23 Geo. 2, c. 11, (o) 
 we find that all that is required to be set out in indictments for per- 
 jury is the substance of the offence charged, and by what court or 
 before whom the oath was taken, averring such court or person to 
 have competent authority to administer the same, without setting 
 forth the commission or authority of the court or person before whom 
 the perjury was committed. It is, therefore, to be considered whether 
 the present indictment has set forth all that is required by the statute. 
 It sets forth the substance of the matter sworn, the person before 
 whom the oath was taken, and avers that he had authority to admin- 
 ister it. The indictment does, therefore, contain all that is required 
 by the words of the statute ; and taking into consideration the object 
 of the Act, which was framed to remove the difficulties before felt by 
 reason of the averments and matters which were usually set out in in- 
 dictments for perjury, we ought not to require more than the words of 
 the legislature have made necessary. When a case of this sort comes 
 on for trial, the prosecutor must prove the situation of the person be- 
 fore whom the oath was taken, and the nature of his authority. I 
 
 (m) Pippet v. Hearn, 5 B. & A. 634. dictment for a crime he is liable to an action 
 
 The question arose before the Judicature for it, although the indictment be defective. 
 Acts in an action for a malicious prosecution (n) R. v. Ewington, C. & M. 319. See 
 
 for perjury, and the first count set out the R. v. Jones, 4 B. & Ad. 345. 
 indictment for perjury as stated in the text, (o) This Act is now repealed, see ante, 
 
 and the court held that the count was good, p. 330. 
 for where a man maliciously prefers an in-
 
 chap, xii.] Of Perjury 'and Subornation of Perjury. 351 
 
 am, therefore, of opinion, that the indictment is sufficient if it contains 
 the name of the person, if the defendant was sworn before a person, or 
 of the court, if he was sworn before a court. There is not, then, any 
 reason for granting this application.' (p) 
 
 This case was reconsidered in the following case : — The indictment 
 stated that at the time of the taking of the false oath by J. 0. hereinafter 
 mentioned, R L., F. D. P., and H. S. G. were commissioners acting in the 
 execution of certain Acts of Parliament relating to the duties of assessed 
 taxes in and for the district of the hundred of Knighton, in the county 
 of W., and thereupon heretofore, to wit, on, &c, at &c, in the district 
 and county aforesaid (at a meeting then and there held by the commis- 
 sioners aforesaid for the purpose of hearing and determining appeals 
 against the certificate or supplementary charges made by one J. L., 
 crown surveyor in pursuance of the said Acts), a certain appeal of 
 one W. H. of C, in the district and county aforesaid, in due form of 
 law came on to be heard. The indictment then averred that the de- 
 fendant on, &c, at, &c, appeared before the said commissioners as a wit- 
 ness for and on the behalf of the said W. H., on the hearing of the said 
 appeal, and was then and there sworn, &c, before the said R. L., F. 
 D. P., and H. S. G-., so being such commissioners as aforesaid, that the 
 evidence which he the defendant should give upon the hearing of the 
 said appeal should be the truth and nothing but the truth (they 
 the said commissioners then and there having authority to administer 
 the said oath, &c). The indictment then proceeded to aver the ma- 
 teriality, the giving the evidence, &c. The defendant having been 
 convicted, a writ of error was brought, and one of the errors assigned 
 was, that it did not appear that the said appeal was an appeal against 
 such a certificate as in the said indictment mentioned, or that the same 
 appeal was such an appeal as the said commissioners or any of them 
 had power, authority, or jurisdiction to determine, and if they had no 
 such power, &c, they had no jurisdiction to administer the said oath ; 
 
 (p) R. v. Callanan, 6 B. & C. 102, 9 D. duly sworn, and did take his corporal oath 
 
 & R. 97- This case having been much relied upon the Holy Gospel of God before the said 
 
 upon in the following case, and the record F. J. Chell (he the said F. J. Chell then and 
 
 examined, I have thought it right to insert there having sufficient and competent power 
 
 the following statement of the first count, and authority to administer the said oath to 
 
 which I took from the record. The indict- the said C. C. in that behalf), and the said 
 
 ment stated that C. C, contriving and C. 0. being so sworn as aforesaid, falsely, 
 
 intending to injure one T. S., and in &c, did then and there before the said F. J. 
 
 order to obtain a rule of the court of B. R., Chell, as such commissioner as aforesaid, 
 
 whereby it might be ordered by the said depose, swear, and make affidavit in writing, 
 
 court that the said T. S. should show cause amongst other things, in substance, &c. The 
 
 why a certain judgment signed on a warrant indictment then set out the affidavit, which 
 
 of attorney in a cause in the said court of stated, amongst other things, that C. C. had 
 
 Stevens against Callanan, and the execution applied to the said T. S. for a loan of 1501., 
 
 issued thereon, should not be set aside, and. which T. S. had agreed to let C. C. have 
 
 the said warrant of attorney be delivered up upon having a mortgage upon his, C. C.'s, 
 
 to be cancelled, and why the proceeds of the house, and as a collateral security a warrant 
 
 said execution should not be restored to the of attorney to accompany the said mortgage, 
 
 said C. C, and why the said T. S. should that the mortgage and warrant of attorney 
 
 not pay the costs of that application, and were prepared for 2501., although no more 
 
 that in the meantime the said proceeds than 1502. was advanced, &c. : ' all which 
 
 should remain in the hands of the sheriff of said several matters and things so deposed 
 
 the county of Middlesex, came in his proper and sworn by the said C. C. as aforesaid were, 
 
 person, &c. , on, &c, at, &c, before F. J. and each of them was material for the obtain - 
 
 Chell, gentleman, and the said defendant ing and supporting the said rule.' C. S. G. 
 then and there, to wit, on &c, at, &c, was
 
 352 Indictment. [book ii. 
 
 and the Court of Queen's Bench held that the indictment was bad 
 upon this ground, and the judgment was reversed, (q) 
 
 Where an indictment alleged that 'a certain action of contract' was 
 pending in a county court, and then alleged that the defendant was 
 duly sworn before the judge of the said court, ' then and there having 
 sufficient and competent authority to administer the said oath to her 
 in that behalf,' it was objected that there was no averment that the 
 said action of contract was one over which the county court had juris- 
 diction, and that no intendment could be made in favour of an inferior 
 court that the action pending in it was one over which the court had 
 jurisdiction ; but the Court of Exchequer Chamber held that it did 
 appear by necessary implication that the action was one over which 
 the judge of the county court had jurisdiction ; for unless he had, he 
 could not have had power to administer the oath, so as to be valid and 
 binding, which is the true meaning of the phrase. The alleged defect, 
 therefore in the averment of the substance of the charge was supplied 
 by necessary implication by the averment of the competency of author- 
 ity in the judge to administer the oath, (r) 
 
 So where an indictment for perjury at a quarter sessions in Ireland 
 alleged that a certain civil bill came on to be tried in due form of law 
 before an assistant barrister, and alleged the oath to have been taken 
 before the said assistant barrister, he having sufficient and competent 
 authority to administer the said oath ; it was objected that the indict- 
 ment ought to have stated that the civil bill was for a cause of action 
 within the jurisdiction of the court. But, on a case reserved, it was 
 held, on the authority of the preceding case, that the indictment was 
 good, (s) 
 
 An indictment for perjury alleged that a petition for protection 
 from process was, under and in pursuance of the 5 & 6 Vict. c. 116, 
 7 & 8 Vict. c. 96, and 10 & 11 Vict. c. 102, filed and presented in the 
 county court of Staffordshire at W. by the prisoner , and that the 
 prisoner afterwards duly received an order for protection from process, 
 and that afterwards, whilst the proceedings upon and in respect of the 
 said insolvency were pending in the said county court, to wit, at the 
 time of filing the said petition and schedule, the prisoner came before 
 H. K., at the court at W., and within the jurisdiction aforesaid, for the 
 purpose of making an affidavit and verifying on oath his said petition 
 and schedule (H. K. being a commissioner to administer oaths in chan- 
 cery, and duly empowered to act in the matter of the said insolvency, 
 and to take the oath of the prisoner), and was duly sworn and took 
 his oath that the affidavit he then made was true (H. K. having com- 
 petent authority to administer the said oath). The indictment then 
 alleged the materiality of certain matter, and that the prisoner falsely 
 swore in the usual way. It was objected on error that the indictment 
 
 (q) R. v. Overton, 4 Q. B. 83. Many it were not distinguishable from that, we 
 
 other errors were assigned, but not deter- should require further time for considera- 
 
 mined by the court. tion,' and that 'in that ease the court 
 
 (r) R. v. Lavey, 2 Den. C. C. 504. 17 considered that there was no averment that 
 
 Q. B. 496. See the indictment, 3 C. & K. the oath was administered in the course of 
 
 26. R. v. Overton, supra, was mainly relied any judicial proceeding.' 
 on, in support of the objection, and the court (s) R. v. Lawlor, 6 Cox, C. C. 187. See 
 
 observed, ' If it were necessary for us to say R. v. Dunning, ante, p. 344. 
 how we should decide the present case if
 
 chap, xii.] Of Perjury and Subornation of Perjury. 35 
 
 Q 
 
 did not show that there was jurisdiction to administer the oath, as it 
 did not allege that the prisoner had resided within the jurisdiction of 
 the court for six calendar months next preceding the filing of his peti- 
 tion, according to the 10 & 11 Vict. c. 102, s. 6. But it was held that 
 the indictment was good, (t) 
 
 An indictment for perjury alleged to have been committed on the 
 hearing of an appeal against a surcharge under the Game Acts before 
 commissioners of assessed taxes, stated that a notice of appeal had 
 been given to the assessors, and averred that the commissioners were 
 ' duly authorized and empowered to hear and determine ' the appeal. 
 It was objected that the commissioners had no jurisdiction unless a 
 notice of appeal had been given to the surveyor or commissioners ; it 
 was answered that the indictment alleged that the commissioners had 
 authority, and that the want of notice might have been waived ; but 
 Patteson, J., held that the want of notice could not be waived ; for 
 the 43 Geo. 3, c. 29, enabled the commissioners to hear the appeal, 
 ' unless such notice shall not have been given,' &c, ' when they shall 
 dismiss the appeal.' Without such notice, therefore, the commission- 
 ers had no authority to hear the appeal, and it could not make the 
 indictment good to show by evidence that the proper notice was given, 
 when the indictment itself showed the notice to have been an improper 
 one. («) 
 
 Variances in allegation of materiality. — It is necessary that it should 
 appear on the face of the indictment that the oath taken was material 
 to the question depending, (v) But it is not necessary to set forth in 
 the indictment so much of the proceedings of the former trial as will 
 show the materiality of the question on which the perjury is assigned, 
 and it will be sufficient to allege generally that the particular question 
 became a material question, (w) Thus statements, that, at a court of 
 admiralty sessions, J. K. was ' in due form of law tried upon a certain 
 indictment then and there depending against him ' for murder, and 
 that ' at and upon the said trial it then and there became and was 
 made a material question,' whether, &c, were holden to be sufficient 
 averments that the perjury was committed upon the trial of J. K. for 
 the murder, and that the question on which the perjury was assigned 
 was material on that trial, (x) If the materiality of the question 
 evidently appears upon the record, as where the falsehood affects the 
 very circumstance of innocence or guilt, or where the perjury is 
 assigned on documents from the recital of which it is evident that 
 the perjury was important, the express allegation may it seems be 
 omitted, (y) And where, upon an indictment for perjury on a trial 
 for felony, it did not appear that the matter sworn was material, 
 nor was it alleged that it was so, the judges held upon a case reserved, 
 that if the original indictment had been set out, and it could plainly 
 
 (t) Walker v. R., 8 E. &B. 439. Wight- (v) R. v. Aylett, 1 T. R. 69. 
 
 man, J., said, ' Suppose the petitioner, not (u;) R. v. Dowlin, 5 T. E. 311 ; Lavey 
 
 so residing, had sworn in his petition that he v. R., 2 Den. C. C. R. 504 ; 3 C. & K. 26. 
 did ; would that be perjury V It was ad- (x) Id. ibid. 
 
 mitted that it would. Lord Campbell, C. J., (y) 2 Chit. Crim. L. 307 a, citing Trem. 
 
 'Then such a petition would give the court P. C. 139, &c, and R. v. Crossley, 7 T. R. 
 
 jurisdiction to inquire into the truth of the 315. Ryalls v. R., 11 Q. B. 781. R. v. 
 
 petition in that respect.' Cutts, 4 Cox, C. C. 435. 
 
 («) Anonymous, 1 Cox, C. C. 50. 
 
 vol. i. — 23
 
 354 Indictment. [book ii. 
 
 have been collected that the matter was material, it would have been 
 sufficient without an averment of materiality, but that as this was not 
 the case the indictment was bad. (z) So where upon an indictment 
 for perjury committed in an answer in chancery, the perjury was 
 assigned in defendant's denial in the answer of his having agreed, 
 upon forming an insurance company of which he was director, &c, to 
 advance 10,000/. for three years to answer any immediate calls, and 
 there was no averment that this was material, nor did it appear for 
 what purpose the bill was filed, nor what was the prayer, the judgment 
 was arrested, (a) 
 
 It seems to be fully settled that either it must appear upon the in- 
 dictment that the matter in respect of which the perjury is assigned 
 was material, or it must be expressly alleged to have been so. An 
 indictment for perjury alleged that on the trial of a certain issue the 
 defendant was sworn as a witness, and that on such trial certain 
 questions became material, that is to say, ' whether one J. Kenworthy 
 had been arrested by one J. Lister ; whether the said J. L. had on the 
 occasion of the said alleged arrest touched the person of the said 
 J. K. ; and whether the said J. L. had on the occasion of the said 
 alleged arrest put his arms round the said J. K. and embraced him.' 
 The indictment then charged that the defendant swore falsely to the 
 following effect : ' Lister (meaning the said J. L.) put his arms round 
 him (meaning the said J. K.) and embraced him (meaning the said 
 J. K., and meaning thereby that the said J. L. had on the occasion to 
 which the said evidence applied, touched the person of the said J. K.).' 
 It was further alleged that in answer to a question put to the de- 
 fendant, ' whether the said J. L. did not put his arms round him 
 (meaning the said J. K.) and embrace him,' the defendant falsely 
 swore as follows : ' he (meaning the said J. L.) did : (meaning that the 
 said J. L., did on the occasion to which the said evidence ajjplicd put 
 his arms round and embrace the said J. K. and did touch the person 
 of the said J. K.). The defendant having been convicted, a writ of 
 error was brought, and the error specially assigned was that the ma- 
 teriality of the evidence alleged to have been false was not sufficiently 
 averred in the indictment ; and it was contended that in the evidence, 
 on which the perjury was assigned, there appeared neither time, place, 
 nor circumstance to connect the statement with the alleged arrest. 
 The whole might have turned upon some former and entirely different 
 transaction. And the innuendoes did not remove the difficulty ; for 
 there was no averment in them that it was on the occasion of the 
 alleged arrest , it merely imported that the evidence was given con- 
 cerning an occasion, which was not identified with that in question. 
 Bayley, J., ' An indictment must be good without the help of argu- 
 ment or inference. In the case of perjury the indictment must show 
 either by a statement of the proceedings or by other averments, that 
 
 (2) R. v. M'Keron, East. T. 1792, MS. question was material or not ; and the mate- 
 
 Bayley, J. 5 T. R. 316. S. C. riality of all questions in a chancery suit 
 
 (a) R. v. Bignold, Trin. T. 1824. MS. depending upon the purpose for which the 
 
 Bayley, J. The indictment was shown to suit is instituted, the court held that the 
 
 Lord Gifford. M. R., and Mr. Bell, K. G, indictment could not he supported. MS. 
 
 who both thought that upon the face of the Bayley, J. 
 indictment it could not he said whether the
 
 chap, xii.] Of Perjury and Subornation of Perjury. 355 
 
 the question to which the offence related was material. That is not 
 shown here in either way. The words on which perjury is assigned, 
 if taken without the innuendoes, have no necessary reference to the 
 occasion of an alleged arrest ; nor is there anything in the indictment 
 to connect them with it. It is contended that the inquiry, to which 
 part of the evidence was an answer, would not have been relevant if 
 applicable to any other matter and occasion than those now in ques- 
 tion ; but we know nothing of the merits of the case except from the 
 indictment. The innuendoes rather introduce greater doubt than 
 greater certainty, and lessen the force of the argument that only one 
 occasion could have been contemplated. I am, therefore, of opin- 
 ion that the indictment is defective, and the judgment ought to be 
 reversed.' (/>) 
 
 Where an indictment stated that a suit was pending in the Court 
 of Chancery, and that a commission was issued to certain com- 
 missioners to examine witnesses upon interrogatories, and then set out 
 the ninth interrogatory, and averred that ' upon the examination of the 
 defendant upon the said interrogatories, it became, and was, material 
 to ascertain the truth of the matters hereinafter alleged to have been 
 sworn to and deposed by the defendant, upon his oath, in answer to 
 the said ninth interrogatory ; : it was objected that the averment of 
 materiality was insufficient, there being no statement of the alleged 
 perjury being material to the chancery suit, or to any question in that 
 suit ; and Coleridge, J., expressed some doubt whether the averment of 
 materiality was sufficient, and would have reserved the point if it had 
 become necessary, (c) And where an indictment for perjury, after 
 alleging that an information was exhibited before two magistrates, and 
 that the same information came on to be heard before M. G. and J. S., 
 two justices, and that ' upon the hearing of the said information before 
 the said M. G. and J. S., so being such justices as aforesaid, it became 
 and was material to ascertain the truth of the matter hereinafter 
 alleged to have been sworn to and stated by the said J. S. upon 
 his oath ; ' it was held that this averment of materiality was in- 
 sufficient, (d) 
 
 An indictment stated that, on the trial of an action of Meek v. 
 Knight, ' it became and was a material question, whether a certain 
 bill of exchange, bearing date, &c.' (here the bill was described) ' was 
 accepted by the said J. Meek, for the accommodation of the said W. 
 Knight, and without valuable consideration to the said J. Meek from 
 the said W. Knight ; and whether a certain paper writing or memo- 
 randum, then and there produced, by and in the handwriting of the 
 defendant, J. Burraston, was really and truly executed by the said 
 TV. Knight, by affixing his mark thereto at the time of the making 
 of the said bill of exchange. (The indictment then set out the 
 
 (b) E. v. Nicholl, 1 B. & Ad. 21. Little- defendant was acquitted. The form of the 
 
 dale, and Parke, JJ. , concurred, and averment in this and the following case was 
 
 Parke, J., added, ' It is part of the defini- taken from 2 Chitty's Cr. L. p. 307 a ; 
 
 tion of perjury that the false swearing is on where it is said that this 'concise statement 
 
 some point material to the question in issue. would, it should seem, in all cases suffice.' 
 In an indictment this may appear either (d) II. v. Goodfellow, Patteson, J., after 
 
 from the matter of the suit, as shown on the consulting Cresswell, J., C. & M. 569. See 
 
 record, or by direct averment. ' the averment of materiality in R. v. Callanan, 
 
 (c) K. v. Hewins, 9 C. & P. 786. The ante, p. note, 351, note (p).
 
 356 Indictment. [book ii. 
 
 memorandum.) And whether the said memorandum was read over 
 by the said J. Burraston to the said W. Knight, at the time of making 
 the said bill of exchange as aforesaid.' The indictment then alleged 
 that the defendant swore that the said paper writing or memorandum 
 was duly executed by the said W. Knight, by affixing his mark to 
 the same, in the presence of the said J. Burraston, on the day on 
 which the same bears date and at the time of the making of the said bill 
 of exchange, and that the said memorandum was then and there read 
 over by the said J. Burraston to the said W. Knight. ' Whereas, in 
 truth and in fact, the said W. Knight did not execute the said paper 
 writing or memorandum by affixing his mark thereto, in the presence 
 of the said J. Burraston, on the day on whigh the same bears date, nor 
 was the said memorandum read over by the said J. Burraston to the 
 said W. Knight at the time of the making of the said bill of exchange, 
 nor was the said memorandum produced or shown to the said W. 
 Knight by the said J. Burraston, at the time of making the said bill 
 of exchange.' Upon a writ of error, brought after a general verdict of 
 guilty, the errors assigned were, that no perjury was assigned upon the 
 question alleged to have been a material question upon the trial, and 
 that no perjury was assigned upon any question alleged to have been 
 a material question upon the trial ; and the Court of Queen's Bench 
 held that the indictment was bad. The assignment of perjury, that 
 the bill was not executed on the day on which the same bears date, 
 departed from the statement of the evidence, and the allegation of the 
 materiality. And the assignment of perjury, that the paper was not 
 executed at the time of the making of the bill, bore no relation to the 
 allegations of the evidence of the defendant. The statement of the 
 evidence of the defendant, as well as the allegation of the falsehood, 
 were uncertain. The words ' then and there ' might refer to the two 
 dates, the date of the memorandum and the day of the making of the 
 bill, and it might consist with the fact that it never was read over on 
 both days, or the defendant might never have intended to say that it 
 was. (e) 
 
 An indictment alleged that E. S. filed his bill in chancery against the 
 prisoner, J. S. S., and J. S., whereby he prayed that a purchase by the 
 prisoner might be declared fraudulent and void, and that he might be 
 decreed to deliver up the contract to be cancelled, and then averred 
 that it then and there became a material question whether the prisoner 
 did advise the said J. S., E. S., and J. S. S., that certain real estate, in- 
 cluding the premises described in the said bill, should be sold. It was 
 held that the averment of materiality was insufficient. There might 
 be very good reasons for setting aside the sale as fraudulent, quite inde- 
 pendently of any advice given by the prisoner ; and that being so, the 
 question was whether there was a sufficient averment of materiality, 
 
 (c) R. v. Burraston, 4 Jurist, 697. The a material question the prosecutor could 
 
 court expressed strong doubts whether it was abstain from stating any swearing as to such 
 
 possible to separate the three propositions, matter, or assigning any perjury upon it. 
 
 which were said to have formed one question ; But it became unnecessary for the court to 
 
 and Littledale, J., said that if it was one decide either of these points, as the indict- 
 
 assignment of perjury, and part was bad, the ment was held bad on the grounds stated in 
 
 whole was vitiated. It was also doubted the text, 
 whether where a matter was stated to be
 
 chap, xil.l Of Perjury and Subornation of Perjury. 357 
 
 and the words ' then and there ' were not sufficient to supply the omis- 
 sion of the words ' in the said suit,' or words to the same effect. (/) 
 
 An indictment for perjury alleged that H. L. stood charged be- 
 fore T. Scott, a justice of the peace, with having on the 12th of 
 August committed a trespass by entering in the daytime on cer- 
 tain land in pursuit of game, and that upon the hearing of the said 
 charge, the prisoner appeared as a witness for the said H. L., and 
 was duly sworn to speak the truth touching the said charge ; and that 
 the prisoner upon the hearing of the said charge, falsely swore that 
 he did not see the said H. L., during the whole day of the 12th of 
 August, and that ' at the time he the said prisoner swore as aforesaid it 
 was material and necessary for the said T. Scott, so being such justice 
 as aforesaid, to inquire of and be informed by the said prisoner whether 
 he did see the said H. L. at all during the said 12th day of August,' 
 and it was held that the indictment was bad ; for ' it is not stated that 
 it was a material and necessary question in the inquiry before the said 
 T. Scott, to which the false and corrupt answer was given. It may 
 have been, therefore, consistently with the averments in the indict- 
 ment, material and important for T. Scott in some other matter, and 
 not in the matter stated to be in issue before him, to have put this 
 question and received this answer. Now as the offence of perjury 
 consists in taking a false oath in a matter stated to be in judgment be- 
 fore a court or person having competent authority to decide it, and as 
 this indictment does not clearly and distinctly charge that, it does not 
 charge the offence of perjury.' (g) 
 
 An indictment for perjury committed on a trial for rape alleged 
 that it was a material question whether the prisoner ever got one 
 M. Williams to write a letter for her, and whether or not she saw 
 the said M. Williams at the house of S. Lewis's father when the said 
 letter was written ; and that the prisoner falsely swore that she never 
 got a Mr. M. Williams (he being then present in court during the said 
 trial) to write a letter for her, and that she did not see the said Mr. 
 M. Williams at the said house of the said father of the said S. Lewis. 
 Whereas the prisoner did get the said M. Williams to write a letter 
 for her, &c. At the trial for rape, the prisoner was asked whether she 
 ever got Mr. M. Williams (who was pointed out to her in court) to 
 write a letter for her. She replied, ' No, I did not.' The letter was 
 shown to her and the question repeated, and she repeated her denial, 
 and she also denied having ever seen M. Williams at S. Lewis's father's 
 house. The falsity of what she so swore was clearly proved and the let- 
 ter produced. It was objected, 1st, that the materiality of the matters 
 assigned as perjury was not sufficiently alleged ; 2nd, that the refer- 
 ence to the letter was too vague and general, and not properly pointed 
 to the particular letter ; 3rd, that the references to M. Williams and 
 Lewis's father's house were not properly introduced by an averment ; 
 4th, that the letter produced was not sufficiently identified with the 
 statements on the record to support them. The objections were over- 
 
 (/) R. v. Cutts, 4 Cox, C. C. 435. Lord averment that it was material.' See also R. 
 
 Campbell, C. J., said, « An indictment for v. Scott, 13 Cox, C. C. 594. 
 
 perjury must either show that the evidence (g) R. v. Bartholomew, 1 C. & K. 366. 
 
 alleged to be false was necessarily material All the judges, 
 to the issue, or there must be a positive
 
 358 Indictment. [book ii. 
 
 ruled, and, on a case reserved, it was urged that all the assignments of 
 perjury were defective in not identifying the M. Williams spoken of in 
 them with the M. Williams spoken of in the allegation of materiality ; 
 but it was held that the indictment was sufficient : it averred that it 
 was a material question whether the prisoner got any M. Williams to 
 write a letter. That averment comprehended every person of the name 
 of M. Williams. The description therefore in this averment was larger 
 than the description in the assignments of perjury, and comprehended 
 the M. Williams there spoken of. As to the objection relating to the 
 letter, it was contended that it could not possibly be material that the 
 prisoner got Williams to write a letter. But it was held that, as there 
 was an express averment that it was material, that let in evidence to 
 prove that it was so, and when the evidence was looked at it was clear 
 that the letter was material. (It) 
 
 An indictment for giving false evidence before a commissioner of 
 bankruptcy alleged that upon the examination of the prisoner it was 
 material to inquire what was the extent of the dealings of the prisoner 
 with ' one Mr. Marshall, and how long he had known the said Mr. 
 Marshall,' &c, and then alleged that the prisoner solemnly declared 
 that ' Mr. Marshall is the landlord of No. 4, York-terrace,' &c. ' I have 
 known Mr. Marshall two or three years,' &c. Whereas the said person 
 so described was the same person as one S. Marshall Legge, and was 
 the father of the prisoner, &c. It was objected, in arrest of judgment, 
 that there was nothing to connect the allegation of materiality with 
 the assignment of perjury, as there was no innuendo that Mr. Mar- 
 shall meant S. Marshall Legge ; and the judgment was arrested as the 
 averment of materiality was insufficient to connect it with the other 
 parts of the indictment, (i) 
 
 An indictment for perjury alleged that a cause came on to be tried 
 before a county court judge, and that it became a material question 
 on the trial whether J. H. Bridges had, in the presence of the prisoner, 
 signed at the foot of a certain bill of account, purporting to be a bill 
 of account between a certain firm called ' Bridges and Co.' and J. Web- 
 ster, a receipt for the payment of the said bill, and that the prisoner 
 falsely swore that J. H. Bridges did in her presence sign the said 
 receipt ; and it was proved that on the trial the prisoner produced an 
 invoice of goods, at the foot of which was a receipt, which purported 
 to bear the signature of Bridges, and the prisoner swore that he in her 
 presence wrote and signed that receipt. Bridges had on other occasions 
 signed receipts in the presence of the prisoner at the foot of invoices. 
 It was objected that the indictment did not sufficiently specify the ac- 
 count and receipt to which the evidence on which the perjury was 
 assigned related ; but, on a case reserved, it was held that the indict- 
 ment was sufficient, as it was only necessary to refer to the receipt as 
 introductory to making out the materiality of the perjury, (f) 
 
 Where an indictment for perjury alleged that the defendant swore 
 that he had not written certain words in the presence of one Dipple, 
 
 (h) R. v. Bennett, 2 Den. C. C. 240 ; 3 No express notice was taken of the other 
 
 C. & K. 124; 5 Cox, C. C. 207. It is trusted points. 
 
 that the text represents substantially the (i) R. v. Legge, 6 Cox, C. C. 220. The 
 
 grounds of the decision on the two points ; Recorder, after consulting Parke, B. 
 but all three reports are very unsatisfactory. (j) R. v. AVebster, Bell, C. C. 154.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 359 
 
 and alleged that it was a material question whether the defendant had 
 so written such words in the presence of Dipple ; the Court of Queen's 
 Bench held that the indictment was sufficient ; for the question whether 
 the words were written in the presence of Dipple might have been 
 material ; and it was impossible to assume the contrary against the 
 record. (Jc) 
 
 An indictment for perjury on the taking of an inquisition before a 
 coroner alleged that it ' was, upon the taking of the said inquisition, a 
 material question whether,' &c, and it was urged that this statement 
 did not sufficiently show that the question was material to the inquiry ; 
 but Parke, B., held that the statement sufficiently imported that the 
 question was material to the subject-matter of the inquisition. (I) 
 
 An indictment for perjury alleged that it was a material question 
 whether, before the execution of a bond, it was agreed between certain 
 persons that the prisoner should lend W. Winder 1500/. before the title 
 to certain premises was investigated by the prisoner, and before any 
 mortgage thereof was executed to secure repayment thereof, and that 
 they should execute the bond to secure the prisoner the repayment of 
 the said sum and interest in case the title should turn out to be de- 
 fective, or the mortgage should not be duly executed ; but if the title 
 turned out to be good, and the mortgage was executed, they were not 
 to be liable on the bond ; and then alleged that the prisoner falsely 
 swore that nothing was said by him or in his hearing about the bond 
 being a temporary security, or a security until the mortgage was pre- 
 pared, ' or any thing of the kind.' It was objected that, according to 
 the agreement as stated, the bond would be binding until the title 
 turned out to be good, which would not necessarily be when the mort- 
 gage was executed, so that the bond would not necessarily be a tem- 
 porary security. But Erie, J., held that the exact terms of the alleged 
 agreement were not material ; for the prisoner swore that there was 
 no agreement ' of the kind.' (m) 
 
 The indictment must show on the face of it that the matter was 
 material ; it is not sufficient if it only shows that it might or might 
 not have been material. An indictment for perjury alleged that, on 
 the trial of an indictment for an assault, with intent to commit a 
 rape, and for a common assault, upon one Ann Bird, the said Ann 
 Bird swore that she was the wife of one J. Bird, and had been mar- 
 ried to him at such a time and such a place, whereas she was not 
 the wife of the said J. Bird, and had never been married to him ; 
 and the indictment contained an allegation of materiality, which was 
 insensible in consequence of an error in copying it from the draft ; 
 it was, nevertheless, contended that it sufficiently appeared on the 
 face of the indictment, that the evidence on which the perjury was 
 assigned was material on two grounds. First, that on any indictment 
 for an assault, with intent to commit a rape, it was most material, not 
 only as affecting the credit of the witness, but as going to the very 
 gist of the charge itself, whether the party assaulted had falsely sworn 
 that she was a married woman. Secondly, that by swearing that she 
 was the wife of J. Bird, the prosecutrix supported the allegation that 
 
 (Jc) R. v. Schlesinger, 10 Q. B. 670. (m) R. v. Smith, 1 F. & F. 98. 
 
 (I) R. v. Kimpton, 2 Cox, C. C. 296.
 
 360 Indictment. [book ii. 
 
 the assault was upon ' Ann Bird,' which would have failed if she 
 had admitted that she was not married to J. Bird. But Cresswell, J., 
 held that it did not sufficiently appear that the evidence was material ; 
 it might or might not be material, and that was not sufficient, (n) 
 
 Where an indictment for perjury stated that a cause was set down 
 for trial, and appointed for a particular day, and that the defendant in 
 that cause, before that day, made an affidavit before a judge, in which he 
 stated that he had a good defence to the action, which he would be able 
 to prove at the trial, and that some of the bills on which it was brought 
 were void for usury, and then assigned perjury on these allegations ; it 
 was objected that the indictment was clearly bad : the only manner in 
 which such an affidavit could be in a judicial proceeding, or the matters 
 contained in it become material, would be upon an application to post- 
 pone the trial of the cause ; but the indictment did not show that any 
 such application was made or intended. Lord Tenterden, C. J., how- 
 ever, thought that the occasion, on which the affidavit was intended 
 to be used, might be sufficiently collected from the indictment, and 
 refused to stop the trial, as the defendant, if there was any weight in 
 the objection, might have the benefit of it after he was convicted, (o) 
 
 An indictment alleged that an action came on to be tried in a county 
 court, in winch the plaintiff claimed to recover a sum for the expenses 
 of a journey, and another sum for wages, and it was thereupon proved 
 on the part of the plaintiff, that the defendant had made certain state- 
 ments, which were set out, and by which the debt to the plaintiff was 
 sought to be proved ; and afterwards averred that the defendant swore 
 that he had not made any of the said statements ; whereas he had 
 made them ; but there was no averment of materiality. Byles, J., held 
 that such an averment was not necessary ; but that it would suffice if 
 the materiality could be gathered from the whole indictment, and if 
 the assignments of perjury showed upon the face of the indictment 
 that they were material to the issue. And here it appeared, on the 
 face of the indictment, that the statements alleged to be falsely made 
 were material to the issue, (p) 
 
 (n) R. v. Ann Bird, Gloucester Spr. Ass. it may be very questionable whether if a 
 
 1842. The indictment for the assault simply fresh indictment were preferred a plea of 
 
 stated the assault to be upon Ann Bird, with- autrefois acquit might not be successfully 
 
 out any further description. The learned pleaded. See per Lord Tenterden, C. J., R. 
 
 judge expressed an opinion that the indict- v. Fowle, 4 C. & P. 592, post. In R. v. 
 
 ment was insufficient before the case went to Purchase, C. & M. 617, tried at the same 
 
 the jury, but he left it to them, and after assizes, Patteson, J., after consulting Cress- 
 
 they had found the prisoner guilty, arrested well, J., refused to allow any objection to he 
 
 the judgment, in order that the prosecutor taken to an indictment for embezzlement, 
 
 might bring a writ of error if he thought fit. except upon demurrer or in arrest of judg- 
 
 Xo writ of error was brought, the prosecutor ment, and it seems most in accordance with 
 
 being unable to incur the expense of such a the regular course of proceeding that such 
 
 proceeding. It sometimes happens that a course should be adopted in all cases, 
 
 upon an objection taken to an indictment C. S. G. 
 
 before verdict, the judge who tries the case, (o) R. v. Abraham, 1 M. & Rob. 7. The 
 
 if he considers the objection valid, directs an defendant was convicted, but did not appear 
 
 acquittal ; hut the course adopted by the to receive judgment when called upon, and 
 
 learned judge in this case is certainly the no motion in arrest of judgment was made, 
 better course, as, if the decision be incorrect (jp) R. v. Harvey, 8 Cox, C. C. 99. It 
 
 where the judgment is arrested, it may be was urged that the omission of an averment 
 
 reversed upon error; whereas if the prisoner of materiality was a mere formal defect, and 
 
 is acquitted, and the decision is incorrect, amendable under the 14 & 15 Vict. c. 100, 
 
 there is no means of correcting the error, s. 25 ; but Byles, J., was clearly of opinion 
 
 and as the verdict of the jury has been taken, that it was matter of substance. It was also
 
 chap, xii.] Of Perjury and Subornation of Perjury. 361 
 
 Variances in allegation of falsity. — It is also necessary that the in- 
 dictment should expressly contradict the matter falsely sworn to by the 
 defendant. And the general averment that the defendant falsely swore, 
 &c, upon the whole matter, will not be sufficient : the indictment must 
 proceed by particular averments (or, as they are technically termed, by 
 assignments of perjury), to negative that which is false. It may be 
 necessary to set forth the whole matter to which the defendant swore, 
 in order to make the rest intelligible, though some of the circumstances 
 had a real existence : but the word ' falsely ' does not import that the 
 whole is false ; and when the proper averments come to be made, it is 
 not necessary to negative the whole, but only such parts as the prose- 
 cutor can falsify, admitting the truth of the rest, (q) It is suggested 
 that in negativing the defendant's oath where he has sworn only to 
 his belief, (r) it will be proper to aver that ' he well knew ' the contrary 
 of what he swore, (s) It seems that an assignment of perjury may, in 
 some instances, be more full than the statement of the defendant, which 
 it is intended to contradict. Thus, where the fact in the affidavit, in 
 which the defendant was charged to have perjured himself, was, that 
 he never did, at any time during Ms transactions with the commis- 
 sioners of the victualling-office charge more than the usual sum of 
 sixpence per quarter beyond the price he actually paid for any malt or 
 grain purchased by him for the said commissioners as their corn-factor ; 
 and the assignment in the indictment, to falsify this, alleged that the 
 defendant did charge more than sixpence per quarter for and in respect 
 of such malt and grain so purchased ; it was objected that the words 
 in respect of might include lighterage, freight, and many collateral and 
 incidental expenses attending the corn and grain jointly with the 
 charge for the corn or grain, and, that bearing such sense, the defend- 
 ant was not guilty of perjury ; but the objection was overruled, (t) 
 
 An indictment alleged that it was material, on the hearing of an in- 
 formation before justices of the peace, to prove that cards were played 
 in the bar of a public-house between the hours of six o'clock and eight 
 o'clock on a certain evening, and that the prisoner falsely swore that 
 he was in the bar of the said house from between the hours of six 
 o'clock and seven o'clock until nine o'clock in the said evening, and 
 that he did not play at any game at all, and that no cards or game of 
 cards at all were or was during all the said last mentioned time or be- 
 tween the hours aforesaid played therein ; whereas the prisoner did 
 between the hours of six o'clock and eight o'clock in the said evening- 
 play at a certain game of cards. Eolfe, B., held that the indictment 
 was bad. The prisoner might have played at five minutes past six, 
 and yet not have played from between six and seven until nine ; the 
 words ' from between six and seven ' might be any time short of seven, 
 five minutes or five seconds to that hour. The indictment could not 
 be read as averring that the prisoner swore that he did not play at 
 any time during that evening, but merely that he did not play at a 
 
 urged that sec. 20 of that Act (ante, p. 331), (r) Ante, p. 294. 
 
 rendered the averment unnecessary; but (s) 2 Chit. Crim. L. 312. 
 
 Byles, J., was clearly of opinion that it did (t) E. v. Atkinson, Dom. Proc. 1785. 
 
 not, as it was not one of the things named Bac. Abr. tit. Perjury (0). See R. v. 
 
 in that section. Gardiner, ante, p. 349. 
 (q) B. v. Perrott, 2 M- & S. 385, 390.
 
 362 Indictment. [book ii. 
 
 particular period of that evening, namely, from some period before 
 seven until nine. That might be perfectly true, and yet he might 
 have played between six and seven, and so may have played, as is 
 assigned in the indictment, between six and eight, (u) 
 
 Where an indictment for perjury committed in an information 
 before magistrates, alleged that the prisoner was sworn on an informa- 
 tion taken on the 11th of March, 1844, and deposed that on ' the 
 morning of Thursday last, the 7th day of March (he meaning the 7th 
 day of March in the year 1804),' he met G. C. ; whereas the prisoner 
 did not on the morning of Thursday, the 7th day of March, 1844, meet 
 G. C. ; it was held that 1804 could not be rejected as surplusage, and 
 that the indictment was bad. (v) 
 
 The averments introduced to negative the matter sworn ought to 
 be so distinct and definite as to inform the defendant of the particular 
 and precise charges which are intended to be proved against him. 
 An indictment for perjury committed in the Insolvent Debtors' Court 
 alleged, that the defendant swore in substance that his schedule con- 
 tained a full, true, and perfect account of all debts owing to him at 
 the time of presenting his petition ; whereas the said schedule did not 
 contain a full, true, and perfect account of all debts owing to him 
 at that time; and Lord Tenterden, C. J., after consulting the other 
 judges of the Court of King's Bench, held that the indictment was 
 insufficient, as it was quite impossible that the defendant could know, 
 from allegations so vague and indistinct, what was to be proved 
 against him ; the allegations conveyed no information whatever of 
 the particular charges against which the defendant ought to be pre- 
 pared to defend himself, (w) 
 
 The indictment charged the prisoner with the offence of making a 
 false declaration before a justice, that he had lost a pawnbroker's 
 ticket, ' whereas in truth and in fact he had not lost the said ticket, 
 but had sold, lent, or deposited it, as a security to one S. C, &c.' Held, 
 that the allegations ' but had sold, lent, or deposited it, &c.,' did not 
 render the indictment ambiguous or uncertain, but was pure surplus- 
 age, which might be rejected, and need not lie proved, (x) 
 
 Assigning perjury on contradictory depositions. — It has been de- 
 cided that perjury cannot be legally charged and assigned by showing 
 that the defendant did on two different occasions make certain depo- 
 sitions contradictory to each other, with an averment that each of 
 them was made knowingly and deliberately, but without averring or 
 showing in which of the two depositions the falsehood consisted. 
 The information stated that the defendant, before a committee of the 
 House of Commons, being duly sworn, deliberately and knowingly, 
 and of his own act and consent, did say, swear, and give in evidence, 
 &c. ; setting out the evidence so given. And then the count averred 
 that the said defendant, at the bar of the House of Lords, being duly 
 sworn, deliberately and knowingly, and of his own act and consent, 
 
 (a) R. v. Whitehouse, 3 Cox, C. C. 86. (w) R. v. Hepper, R. & M. N. P. R. 210. 
 
 (r) R. v. Garvey, 1 Cox, C. C. 111. See R. v. Mudie, 1 M. & Rob. 128. R. v. 
 
 Brady, C. B. This case is very badly London, 12 Cox, C. C. 50. 
 reported, and it is very doubtful whether (x) R. v. Parker, 39 L. J. M. C. 60. 
 
 the wrong year was not given as the date of L. R. 1 C. C. R. 225. 
 swearing the information.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 363 
 
 did say, swear, and give in evidence, &c. : setting out in like manner 
 the latter evidence, which was directly contrary to that given before 
 the House of Commons ; and concluded (after averments as to the 
 identity of the persons and places referred to in the evidence on both 
 occasions), and so the jurors aforesaid do say that the said Edward 
 Harris did commit wilful and corrupt perjury. And this was holden 
 to be bad on motion in arrest of judgment, (y) 
 
 Averment by innuendo. — If there be any doubt on the words of 
 the oath, which can be made more clear and precise by a reference to 
 some former matter, it may be supplied by an innuendo ; the use of 
 which is, by reference to preceding matter, to explain and fix its 
 meaning more precisely, (z) We have seen that, in a case of perjury 
 committed in an affidavit, it was holden that a word which had been 
 omitted by accident in the original document was improperly stated 
 in the indictment, as though it had been in the original document, 
 and that such word ought to have been inserted and explained by an 
 innuendo, (a) In a case where an objection was taken to an indict- 
 ment, that it added, by way of innuendo to the defendant's oath, ' his 
 house situate in the Haymarket in St. Martin in the Fields,' without 
 stating by any averment, recital, or introductory matter, that he had 
 a house in the Haymarket, or (even admitting him to have such a 
 house) that his oath was of and concerning the said house, so situated, 
 the objection was overruled, on the ground that the innuendo was 
 only a more particular description of the same house which had been 
 previously mentioned, (b) And, in the same case, the oath of the 
 defendant being that he was arrested upon the steps of his own door, 
 an innuendo that it was the outer door was holden good, (c) Where 
 an innuendo is improperly introduced, and any use is made of it in 
 the indictment, it cannot be rejected as surplusage, and it will be bad 
 after verdict, (d) But if the innuendo, and the matter introduced 
 by it, are altogether impertinent and immaterial, and can have no 
 effect in enlarging the sense, it seems that they may be rejected as 
 superfluous, (e) 
 
 The proper office of an innuendo is to fix and point the meaning 
 of something that has been previously averred. The indictment 
 stated the presenting of a petition to the House of Commons con- 
 cerning the election of F. H. F. Berkeley, and set out the petition, 
 which stated the said F. H. F. Berkeley before and at the election was 
 guilty of bribery, and that certain agents of the said F. H. F. Berkeley, 
 being trustees of divers public charities, and by virtue of such office 
 entitled to dispose of the funds of such charities, before and at the said 
 election were guilty of various corrupt acts, &c, in order to procure the 
 return of the said F. H. F. Berkeley. The indictment then averred 
 that one T. Carlisle was a trustee of divers of the said public charities, 
 
 (y) R. v. Harris, 5 B. & A. 926. It note, (4). 1 Chit, on Plead. 406. 1 Stark, 
 
 should have been averred and shown in Crim. Plead. 118, ct seq. 
 which of the two depositions the falsehood (a) R. v. Taylor, 1 Campb. 404. Ante, 
 
 consisted. p. 335. 
 
 (z) R. v. Aylett, 1 T. R. 70. R. v. ' (b) R. v. Aylett, 1 T. R. 70. 
 Taylor, 1 Campb. 404. See R, v. Griepe, 1 (c) Id. ibid. 
 
 Lord Raym. 256. 2 Salk. 513. And see as {d) R. v. Griepe, 1 Ld. Raym. 260. 
 
 to the use of an innuendo, 1 Saund. 243, (e) Roberts v. Camden, 9 East, 93. 2 
 
 Chit. Crim. L. 311.
 
 364 Indictment. Innuendo. [book ii. 
 
 and ' that shortly before the said election (to wit), on, &c., the said T. 
 Carlisle, the said F. H. F. Berkeley, and other persons, went to the 
 house of one W. Virrier for the purpose of soliciting the said W. Virrier 
 to vote for the said F. H. F. Berkeley at the said election.' The indict- 
 ment then stated that certain members of the House of Commons 
 were chosen to try and determine the merits of the said election, and 
 that the said persons so chosen met to try and determine the matter of 
 the said petition. The indictment then averred that S. Virrier appeared 
 ' as a witness before the said select committee touching the matter of 
 the said petition,' and that the said S. Virrier was duly sworn, &c. ' And 
 it then and there became and was a material question, whether at the 
 time aforesaid, when the said T. Carlisle, the said F. H. F. Berkeley, 
 and the said other persons, so went to the house of the said W. 
 Virrier, the said T. Carlisle said that he would give the said W. Virrier 
 6/. out of the funds of one of the aforesaid charities at Christmas, 
 whereof the said T. Carlisle was trustee as aforesaid, or that he would 
 give him 61. at Christmas.'(/) And that the said S. Virrier falsely, 
 &c, did depose, &c, to the select committee aforesaid, ' touching the 
 matters and merits of the said election, and the matter of the said 
 petition, in substance and to the effect following, viz., that before the 
 said election a canvassing party came to her husband's house, and 
 Mr. Berkeley (meaning the said F. H. F. B.), and Mr. Carlisle (mean- 
 ing the said T. C), came into the house of the said W. Virrier, and 
 Mr. Carlisle asked her if she knew who her husband was Koino- to Vote 
 for at the ensuing election ; that she said she believed he was going 
 to vote one and one, and that Mr. Carlisle then said that he would 
 act like a sensible man, and " I will give him the 6/. at Christmas " 
 (thereby meaning that at the said time when the said F. H. F. Berkeley, 
 and the said T. Carlisle, and the said other persons so went as afore- 
 said to the house of the said W Virrier, for the purpose of soliciting 
 Mm to vote for the said F. H. F. Berkeley, the said T. Carlisle said 
 he would give the said W. Virrier 61. at Christmas, out of the funds 
 of one of the aforesaid public charities, whereof the said T. Carlisle 
 was trustee as aforesaid).' (g) ' Whereas in truth and in fact the said 
 T. Carlisle did not at the said time when the said F. H, F. Berkeley, 
 the said T. Carlisle, and other persons went to the said house of the 
 said W. Virrier to solicit him to vote as aforesaid, or during the 
 time when, on that occasion, they were in or at the said house, say 
 to the said S. Virrier that the said T. Carlisle would give to the 
 said W. Virrier the 61. at Christmas, or any sum of money from 
 or out of any of the said public charities, or any sum of money 
 whatsoever at Christmas or at any other time.' (h) The defendant 
 having been found guilty, it was moved, in arrest of judgment, that it 
 did not appear either from the evidence said to have been given by the 
 defendant, or from any other part of the indictment, except the innu- 
 endo, that the occasion on which the speaking of the words was said 
 to have been material, was the same occasion with reference to which 
 
 (/) The indictment here stated other (h) The indictment here set out other 
 
 questions to he material in a similar assignments of perjury to the other parts of 
 
 manner. the evidence, which was set out in the 
 
 (g) The indictment here set out more of indictment, 
 the evidence. See the case, post, p. 370.
 
 chap, xii.] Of Perjury and Subornation of Perjur/j. 365 
 
 the evidence was given ; that the averment of materiality might relate 
 to one occasion, and the evidence to another occasion of the same 
 kind ; and that the innuendo would not aid, because an innuendo can 
 only explain, and cannot supply the place of a substantial averment. 
 The indictment also alleged that the defendant swore ' touching the 
 matters and merits of the said election, and the matter of the said peti- 
 tion,' but that did not show that her evidence related to the material 
 time before mentioned. Nor did her evidence, as set out, identify the 
 occasion without the innuendo. The innuendo, therefore, did more 
 than explain; it supplied that which made the evidence material. 
 Lord Denman, C. J., after full argument and time taken to consider, 
 delivered the judgment of the Court as follows: 'Upon this indictment 
 a motion has been made to arrest the judgment upon two objections. 
 1st, that the allegation of the oath having been taken " touching the 
 matter of the said election, and the matter of the said petition," did 
 not sufficiently point to the matter whereupon the defendant was 
 alleged to have given evidence ; and, secondly, that there was nothing 
 to fix the alleged gift and promise of money to the said visit on the 
 6th of July. We think, however, that neither objection is sustainable. 
 As to the first, it does sufficiently appear that a competent trial was 
 had, that a material question arose as to the existence of certain facts, to 
 which the defendant deposed, and was therein guilty of perjury. Now 
 although it is certainly true that the averment stating the oath to 
 have been " touching and concerning the matters and merits of the 
 said election, and the matter of the said petition," does not directly 
 refer to what are alleged to be the material questions which arose, yet, 
 where it does sufficiently appear, both by averment and otherwise, that 
 the oath was upon a material point, the allegation "touching and con- 
 cerning," &c, is wholly superfluous and unnecessary, and the indict- 
 ment would have been sufficient if it had omitted that part altogether, 
 and had merely stated that the defendant deposed and swore " as fol- 
 lows," &c. The second objection is, that the evidence, upon which the 
 perjury is alleged to have been committed, is not referred with suffi- 
 cient distinctness to the said canvassing visit, and that the innuendo, 
 by which it is attempted so to apply it, introduces new matter, and is 
 therefore bad. We, however, think otherwise; for an introductory 
 averment expressly states that there was, in fact, such canvassing 
 visit, and the innuendo directly refers thereto. It is plain, therefore, 
 that this case comes within the rule laid down by De Grey, C. J., in 
 B. v. Home, (i) which has always been recognized as the true one ; 
 and that the innuendo does only point and fix the meaning of some- 
 thing previously averred, which is the proper office of an innuendo, 
 and that it does in no respect enlarge it. We think, therefore, that 
 there is no ground for arresting the judgment. ' (j) 
 
 Conclusion of the indictment. — An indictment for perjury at com- 
 mon law need not conclude ' against the form of the statute.' The 
 defendant was indicted for perjury in giving false evidence before the 
 revising barrister as to the occupation of a tenement in the borough of 
 Bridgnorth, and the indictment did not conclude against the form of 
 the statute. It was objected that as this was a crime created by the 
 
 (i) 2 Cowp. 672. (j) R. v. Virrier, 12 Ad. & E. 317.
 
 oG6 Indictment. [book ii. 
 
 2 Will. 4, c. 45, s. 52, the indictment ought so to have concluded. It 
 was answered that the revising barrister held a court, which was made 
 so by sec. 50 of the same Act. That any false swearing in a court 
 was perjury at common law, and therefore the indictment was good. 
 Lord Abinger, C. B., thought the only question was, whether the stat- 
 ute, by sec. 50, constituted a court ; for if it did, the offence of false 
 swearing in it was perjury at common law, and his opinion was that it 
 did constitute a court, and therefore the indictment was sufficient, (k) 
 And so it has been held that an indictment for perjury committed by 
 a plaintiff as a witness in his own behalf in a suit in a county court 
 need not conclude ' against the form of the statute.' (/) 
 
 Where all the counts of an indictment for perjury concluded, ' and 
 so the jurors aforesaid upon their oath aforesaid did say that the de- 
 fendant on, &c, at, &c, before, &c, did commit wilful and corrupt 
 perjury,' it was objected, on error, that this conclusion was erroneous 
 in using the words ' did say ' instead of ' do say ; ' but the Court of 
 Queen's Bench held that the whole averment might be struck out, as 
 the perjury was sufficiently alleged by the preceding part of each 
 count ; and as ' perjury ' was not a word of art, like ' murder,' the 
 concluding part of the count was immaterial, (m) 
 
 In general the Court will oblige the defendant to plead or demur to 
 a defective indictment for perjury, (n) And they are very cautious in 
 granting a certiorari to remove it. (o) 
 
 But where an indictment for perjury is clearly bad upon the face of 
 it, a judge at nisiprius may refuse to try such indictment. An indict- 
 ment for perjury charged that one A. B. had been convicted of certain 
 offences, and that A. B. afterwards obtained a rule to show cause why 
 a new trial should not be granted, and that the defendant, in order to 
 prevent the said rule from being made absolute, made the affidavit 
 whereon the perjury was assigned, but there was no averment that the 
 matters falsely sworn were material, nor could it be collected from the 
 indictment that they were so ; and Garrow, B., having consulted 
 Abbott, C. J., who concurred with him in opinion that the indictment 
 was clearly bad, held that it was the duty of the judge not to proceed 
 to try the case, (p) So where in an indictment for perjury the allega- 
 tions negativing the matter sworn, were so vague and indistinct as to 
 convey no information of the particular charges against the defendant ; 
 Abbott, C. J., after consulting the other judges of the Court of King's 
 Bench, ordered the case to be struck out of the list, (q) So where an 
 indictment for perjury at common law was found at the Quarter Ses- 
 
 (k) R. v. Thornhill, Salop Sum. Ass. (o) 2 Hawk. P. C. c. 27, s. 28. 
 
 1838, reported on another point, 8 C. & P. (p) R. v. Tremearne, R. & M. N. P. R. 
 
 575. In R. v. De Beauvoir 7, C. & P. 17, 147. In R. v. Deacon, R. & M. X. P. R. 
 
 the indictment seems not to have concluded 27, Abbott, C. J., refused to try an indict- 
 
 ' against the form,' &c. See the note at the ment for a forcible entry, which was bad for 
 
 end of the case. want of alleging that the entry was manu 
 
 (/) R. v. Morgan, 6 Cox, C. C. 107. forti, although the counsel for the defendant 
 
 Martin, B. See ante, p. 36. insisted that the case should proceed in 
 
 (m) Ryalls v. R., 11 A. & E. 781 ; R. v. order that the defendants might have the 
 
 Hod^kiss, 39 L. J. M. C. 14 : and see now benefit of an acquittal by a jury, as they in- 
 
 the 14 & 15 Vict. c. 100, s. 24. tended to institute proceedings for a mali- 
 
 (n) 2 Hawk. P. C. c. 25, s. 146 ; R. v. cious prosecution. 
 
 Souter, 2 Stark. R. 423 ; R. v. Burnby, 5 (?) R. v. Hepper, R. & M. X. P. R. 210. 
 Q. B. 348.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 367 
 
 sions, and removed by certiorari into the Court of King's Bench, and 
 sent down to be tried at nisi prius ; Gaselee, J., refused to try it, as it 
 was quite clear that the sessions had no jurisdiction over perjury at 
 common law, and the indictment was, therefore, void, (r) But a judge 
 will not allow counsel to argue at length at nisi prius the invalidity 
 of an indictment, for the purpose of inducing the Court to refuse to 
 try it, as that is not the time or place to discuss such disputed 
 questions, (s) 
 
 As to amending an indictment at the trial when there is a variance 
 between the statements in it and the evidence, see ante, p. 53. 
 
 The defendant was indicted in Middlesex for perjury committed in 
 an affidavit ; which indictment, after setting out so much of the affi- 
 davit as contained the false oath, concluded with a prout patet by 
 the affidavit filed in the Court of King's Bench, at Westminster, &c, 
 and on this he was acquitted ; after which he was indicted again in 
 Middlesex, for the same perjury, with this difference only, that the 
 second indictment set out the jurat of the affidavit, in which it was 
 stated to have been sworn in London ; which was traversed by an 
 averment that, in fact, the defendant was so sworn in Middlesex, and 
 not in London ; and the Court of King's Bench held that he was 
 entitled to plead autrefois acquit, as the jurat was not conclusive as 
 to the place of swearing ; and the same evidence as to the real place 
 of swearing the affidavit might have been given under the first as 
 
 o o o 
 
 under the second indictment ; and therefore, the defendant had been 
 once before put in jeopardy for the same offence, (t) 
 
 Trial. — With respect to the trial of perjury it may be observed, 
 that the courts of Quarter Sessions have no jurisdiction over the 
 offence at common law, and though they had jurisdiction over it under 
 the 5 Eliz. c. 9, yet that jurisdiction is taken away by the 5 & 6 Vict. 
 c. 38, s. 1, which enacts, that ' neither the justices of the peace acting 
 in and for any county, riding, division, or liberty, nor the recorder of 
 any borough, shall, at any session of the peace, or at any adjourn- 
 ment thereof, try any person or persons for {inter alia) perjury or 
 subornation of perjury ; ' or ' making or suborning any other person 
 to make a false oath, affirmation, or declaration punishable as perjury, 
 or as a misdemeanor, (u) 
 
 By the 22 & 23 Vict, c. 17 (amended by 30 & 31 Vict. c. 35), 
 no indictment for perjury or subornation of perjury can be found by 
 any grand jury, unless the case has been taken before a justice, &c, 
 as therein mentioned, (v) 
 
 It may be observed that it is the practice of the Central Criminal 
 Court not to try an indictment for perjury arising out of a civil suit 
 while that suit is in any way undetermined, except in cases in which 
 
 (r) R. v. Haynes, R. & M. N. P. R. v. Hepper and R. v. Tremearne the objec- 
 
 298. See R. v. Rigby, 8 C. & P. 770. tions to the indictment were pointed out by 
 
 (s) R. v. Abraham, 1 M. & Rob. 7, mite, the Court. See ante, p. 366. 
 
 p. In this case the defendant's counsel (t) R. v. Emden, 9 East, 437. As to 
 
 pointed out the objections in order to in- pleading autrefois acquit, see ante, p. 38. 
 
 duce the Court to stop the trial, and Lord (u) R. v. Bainton, 2 Str. 1088. R. v. 
 
 Tenterden, C. J., said that 'it might be Westiness, id. ibid. 1 Chit. Crim. L. 301. 
 
 convenient sometimes for counsel to suggest R. v. Haynes, R. & M. N". P. R. 298. 
 
 a point on which an indictment is clearly (v) See the Acts, ante, p. 2. 
 bad, to save the time of the Court.' In R.
 
 368 Trial [book ii. 
 
 the Court, where the suit is pending, postpones the decision of it in 
 order that the criminal charge may first be disposed of. (w) 
 
 Where two justices refuse to hear a charge of perjury alleged to' 
 have been committed in a suit in the Ecclesiastical Court, on the ground 
 that that suit was still pending, the Court of Queen's Bench refused 
 to grant a mandamus to compel them to hear the charge, and the 
 Court seem to have thought that the course the justices had taken 
 was the most likely to answer the ends of justice, (x) 
 
 Where a person made an affidavit in the Court of Common Pleas, 
 and afterwards, being summoned to appear in Court, came there, and 
 confessed it to be false, the Court recorded his confession, and ordered 
 that he should be taken into custody, and put in the pillory, (y) In 
 answer to the objections of the defendant's counsel to this proceeding,, 
 it was argued that it was fully justified under the 5 Eliz. c. 9, and 
 that even if the Court could not punish the defendant by virtue of 
 that statute, he might be punished at common law, on the ground that 
 any Court might punish such a criminal for an offence committed in 
 facie curiae, (z) 
 
 Number of witnesses necessary for conviction. 1 — The evidence of 
 one witness is not sufficient to convict the defendant on an indictment 
 for perjury ; as in such case there would be only one oath against 
 another, (a) But this rule must not be understood as establishing 
 that two witnesses are necessary to disprove the fact sworn to by the 
 defendant ; for if any material circumstance be proved by other wit- 
 nesses, hi confirmation of the witness who gives the direct testimony 
 of perjury, it may turn the scale, and warrant a conviction, (b) 
 
 Upon an indictment for perjury, Coleridge, J., is reported to have said, 
 ' One witness in perjury is not sufficient, unless supported by circum- 
 stantial evidence of the strongest kind; indeed, Lord Tenterden, C. J., 
 was of opinion that two witnesses were necessary to a conviction.' (c) 
 In a later case, where the evidence of one witness went in support of all 
 the assignments of perjury, and to confirm him another witness was 
 examined as to a conversation between himself and the defendant, and 
 some entries in the defendant's books were given in evidence ; it was 
 submitted that there was no evidence to go to the jury ; that the rule 
 is that a case of perjury cannot be submitted to the jury on the evi- 
 dence of a single witness ; and as to the evidence of confirmation, it 
 was not enough that there should be some evidence in confirmation, as 
 
 (w) R. v. Ashburn, and R. v. Simmons, (c) Champney's case, 2 Lew. 258, and 
 
 8 C. & P. 50. the same point is said to have been ruled by 
 
 (x) R. v. Ingham, 14 Q. B. 396. the same learned judge in R. v. Wigley, 
 
 (y) R. v. Thorogood, 8 Mod. 179. ibid. note. And Mr. Starkie observes, ' And 
 
 (2) Id. ibid.; and Bushell's case, Vaugh. scmble that the contradiction must be given 
 
 152, was cited. by two direct witnesses, and that the nega- 
 
 (a) R. v. Muscot, 10 Mod. 193. 4 Black, tive supported by one witness and by circum- 
 Com. 358. Peake on Evid. 10. 1 Phil, on stantial evidence, would not be sufficient. 
 Evid. 151, 7th edit. It has been so held (ut audivi) by Lord 
 
 (b) R. v. Lee, Mich. 6 Geo. 3 MS. Bay- Tenterden, C. J.' 3 Stark. Evid. 860, note 
 ley, J., 1 Phil. Evid. 152, 7th edit.; R. v. (g). 
 
 Shaw, L. & C. 579 ; 34 L. J. M. C. 169. 
 
 American Note. 
 
 1 See "Woodbeck v. Keller, 6 Cow. 118; 582 ; Hendricks v. S., 26 Ind. 493 ; U. S. 
 S. v. Hayward, 1 N. & M. 546; C. v. Par- v. Hall, 44 Fed. Rep. 864; S. v. Peters, 107 
 ker, 3 Cush. 212; S. v. Raymond, 20 Iowa, N. C. 876; S. v. Heed, 57 Mo. 252.
 
 chap. XII.] Of Perjury and Subornation of Perjury. 369 
 
 in an ordinary case at nisi prius, where some evidence is necessary to 
 prevent a nonsuit; but it must be such evidence as, in the opinion of 
 the judge, is really confirmatory in some important respect, and equiva- 
 lent to the positive testimony of a second witness. Coleridge, J., ' I 
 think that the case must go the jury, but I also think without the 
 slightest chance of a verdict for the crown. The rule that the testi- 
 mony of a single witness is not sufficient to sustain an indictment for 
 perjury, is not a mere technical rule, but a rule founded on substantial 
 justice ; and evidence confirmatory of that one witness in some slight 
 particulars only, is not sufficient to warrant a conviction.' (d) 
 
 An indictment for perjury committed on the trial of a civil bill 
 alleged that the prisoner, Thomas Towey, falsely swore that ' the note 
 produced is not my handwriting, or any part of it, and the name 
 " Thomas Towey " as a witness is not in my handwriting.' The note 
 purported to bear the marks of Patrick and James Towey as makers 
 of the note, and had on it, ' Witness present, Thomas Towey.' The 
 payee of the note could not read, but he identified the note, and 
 swore that he saw Thomas Towey write on the paper, and saw Patrick 
 and James put their marks on it. Another witness proved that he 
 had subpeenaed Thomas Towey to appear at the sessions as a witness, 
 and that the prisoner then said that there was no occasion to test 
 (subpoena) him ; that he would go to prove the note ; and that at 
 a meeting between the parties to try to settle the civil bill, on the 
 payee of the note saying he had James Towey's note, and would take 
 the law on it unless he signed a new one, Thomas said that he 
 had been tested (subpoenaed) to come there, but that there was no 
 occasion to test him ; that he would prove the note. But the note 
 was not produced at this meeting ; and, upon a case reserved, it was 
 held that this evidence was a sufficient corroboration of the evidence 
 of the payee. The prisoner was the only witness to the note, and 
 he could only prove it in his character as a witness, and, therefore, 
 when he said he could prove it, it came to sufficient evidence that he 
 was the witness to the note, (e) 
 
 An indictment for perjury alleged that in the month of June, 1851, 
 the prosecutor had distrained upon the prisoner for certain arrears of 
 rent, and that the prisoner on a trial at nisi prius falsely swore that 
 there was only one quarter's rent due at the time of the said distress. 
 On the trial for perjury the prosecutor positively swore to the fact of 
 there being five quarters' rent due at the time of the said distress ; 
 and produced his books by which he refreshed his memory ; and for 
 the purpose of corroborating his statement and showing by the oaths 
 of two witnesses the falsity of the matter sworn to, the son of the 
 prosecutor deposed to a conversation with the prisoner in August, 
 1850, in which the prisoner admitted that three or four quarters of 
 the said rent were then due. The jury convicted ; but, upon a case 
 reserved, the judges were unanimously of opinion that this was not 
 sufficient corroboration. There was nothing in the evidence of the 
 
 (d) R. v. Yates, 0. & M. 132. See R. which the payee could not distinguish from 
 v. Parker, post, p. 375. the note ; hut Hayes, J., observed that the 
 
 (e) R. v. Towey, 8 Cox, C. C. 328. The jury had found that the prisoner spoke of 
 payee was cross-examined to show that there ' the note.' 
 
 was another paper written by the prisoner, 
 
 vol. r. — 24
 
 370 Evidence. [book ii. 
 
 son relevant to the issue. There was a year's interval between the 
 transaction he spoke of and the time when the distress was made, and 
 the money might have been paid intermediately. The oath of the 
 son was <jnite as consistent with the oath of the prisoner as with that 
 of the prosecutor. In perjury there must be something to make the 
 one believed rather than the other, and there was no such evidence in 
 this case. (J) 
 
 In one case where there were three assignments of perjury upon 
 evidence relating to one and the same transaction, at one and the 
 same time and place, it seems to have been considered that the 
 jury ought not to convict on one of the assignments, although there 
 were several witnesses who corroborated the witness who spoke to 
 such assignment on the facts contained in the other assignments. 
 The indictment stated that the defendant swore that Mr. B. and Mr. 
 0. came to her husband's house, that Mr. C. said, ' I will give him the 
 61. at Christmas,' and Mr. B. shook hands with her, and put some- 
 thing into her hand, and told her to give it to her husband, and that 
 it was a sovereign wrapped up in some paper ; and Mr. C. told her he 
 should not forget it was in his power to give her husband the 6/. at 
 Christmas. The assignments of perjury were, 1st, that Mr. C. did not 
 say that he would give the 6/. at Christmas ; 2ndly, that Mr. B. did 
 not put a sovereign into the hand of the defendant ; and 3rdly, that 
 Mr. C. did not tell the defendant that he should not forget it was in 
 his power to give her husband the 6/. at Christmas. Evidence was 
 given in support of all the assignments of perjury. Lord Denman, 
 C. J., in summing up, said that as to the second assignment the proof 
 lay almost entirely in the evidence of one witness, and, therefore, he 
 did not see how the jury could convict of the perjury imputed ; but 
 that on the others there was a distinct contradiction of the defendant's 
 testimony by Mr. C, who was supposed to have offered the 61, and 
 several other witnesses ; and he left it to the jury to say whether 
 there was not a strong body of evidence clearly supporting Mr. C.'s 
 denial, (g) 
 
 But where upon an indictment for perjury, alleged to have been 
 committed in making a charge of an unnatural offence, in which the 
 defendant had deposed that he saw the prosecutor committing the 
 offence, and saw the flap of his trowsers unbuttoned, and that he was 
 
 (/) R. v. Boulter, 2 Den. C. C. 396. In the first and third as one, and did so leave 
 
 Best's Pr. Ev. 440 it is observed, ' We ap- the case to the jury, who fouud a verdict of 
 
 prehend that the old rule and reason of the 'not guilty on the first assignment of per- 
 
 matter are not satisfied unless the evidence jury for want of sufficient evidence, and 
 
 of each witness has an existence and pro- guilty on the second,' but said nothing on 
 
 bative force of its own, independent of the the third, and the verdict was entered ac- 
 
 other ; so that, supposing the charge to be cordingly. The Chief Justice did not at the 
 
 one of those in which the law allows con- time make any note of his summing up, but 
 
 demnation on the oath of a single witness, did so afterwards ; and having a distinct 
 
 the evidence of either would form a case remembrance of it, and no doubt of the 
 
 proper to be left to a jury, or would at least jury's intention, he (on summons) allowed 
 
 raise a strong suspicion of the guilt of the the postea to be amended by entering a ver- 
 
 defendant. See R. v. Shaw, 34 L. J. M. C. diet of 'guilty' on the first and third assign- 
 
 169. ments, and 'not guilty' on the second ; but 
 
 (g) R. v. Tinier, 12 Ad. & E. 317. The the Court afterwards held that the amend- 
 Chief Justice considered the most conveni- ment ought not to have been made, there 
 ent mode of summing up the case to be to being no note or memorandum of the judge 
 treat the second assignment as the first, and or other document to amend by.
 
 chap, xil] Of Perjury and Subornation of Perjury. 371 
 
 there live minutes ; and to disprove this the prosecutor swore that 
 he did not commit the offence, and that his trowsers had no flap on; 
 and to confirm him his brother proved that at the time in question 
 the prosecutor was only absent three minutes, and that the trowsers 
 he had on, which were produced in court, had no Hap; Patteson, J., 
 held that the corroborative evidence was quite sufficient to go to the 
 jury ; and upon a case reserved, the judges held the conviction 
 right, (h) So where perjury was alleged to have been committed by 
 the defendant, who was an attorney, in an affidavit made by him to 
 oppose a motion to refer the defendant's bill of costs to taxation, and 
 to prove the perjury one witness was called, and in lieu of a second 
 witness, it was proposed to put in the defendant's bill of costs deliv- 
 ered by him to the prosecutor ; it was suggested that this was not 
 sufficient, as the bill had not been delivered by the defendant on oath. 
 Lord Denman, C. J., ' I have quite made up my mind that the bill 
 delivered by the defendant is sufficient evidence, or that even a letter, 
 written by the defendant, contradicting his statement on oath, would 
 be sufficient to make it unnecessary to have a second witness.' (i) 
 
 Where a prisoner was indicted for falsely swearing that he had paid 
 J. Bland a certain sum of money on a particular occasion, and Bland 
 swore that he received the money in packages, and afterwards counted 
 it, and found it 11. short ; and the only corroboration of his statement 
 was by another person, who also counted it, but had not been present 
 when the money was received ; it was held that this was no corrobo- 
 ration at all. (j) 
 
 An indictment alleged that the prisoner falsely swore at a petty ses- 
 sions that D. Rees was the father of her illegitimate child. A witness 
 other than D. Rees proved that the prisoner had said that D. Rees ' had 
 never touched her clothes ' at a time when she generally denied being 
 in the family way ; and Martin, B., thought that though, under some 
 circumstances, such a statement might have been a sufficient corrob- 
 oration of the evidence of D. Rees, yet this negation was so far a part 
 of the general denial that the jury could not safely convict upon it 
 alone, (k) 
 
 A count alleged that the prisoner falsely swore that she had shown 
 to one Cuthbert certain invoices bearing certain dates. Cuthbert swore 
 that the prisoner had not shown him the invoices she had sworn to, 
 but that she had shown others ; and he produced a memorandum, he 
 had made privately at the time, of the dates of the invoices, which 
 showed that they were not the same as those sworn to by the pris- 
 oner ; Cockburn, C. J., held the private memorandum a sufficient 
 corroboration. (I) 
 
 (k) R. v. Gardiner, 2 Moo. C. C. R. 95. and found it wrong ; he then gave it to a 
 
 See a fuller statement of this case, mite, Mrs. Watson, and asked her to count it 
 
 p. 347. over.' Mrs. Watson was the witness called 
 
 (i) R. v. Mayhew, 6 C. & P. 315. to corroborate Bland. 
 
 0') R. v. Braithwaite, 1 F. & F. 638, 8 (ifc) R. v. Owen, 6 Cox, C. C. 105. 
 
 Cox, C. C. 444. Watson, B., and Hill, J. (I) R. v. Webster, 1 F. & F. 515. If 
 
 In the latter report it is stated that 'the pro- this case is correctly reported, it deserves 
 
 secutor took it without counting it, and car- reconsideration. The memorandum was not 
 
 ried it to a Mrs. Watson's, and counted it itself admissible, and could only be used to 
 
 over.' In the former, 'The prosecutor took refresh the memory of the witness ; so that 
 
 it without counting it, and carried it to an the whole statement rested on his single 
 
 adjacent lane, where he counted a part of it, oath; and, even if the memorandum had
 
 372 Evidence. [book ii. 
 
 Contradictions by defendant. — 111 a case where the defendant had 
 been convicted of perjury, charged in the indictment to have been 
 committed in an examination before the House of Lords, and the 
 only evidence was a contradictory examination of the defendant be- 
 fore a committee of the House of Commons, application was made 
 for a new trial, on the ground that in perjury two witnesses were 
 necessary, whereas in that case only one witness had been adduced 
 to prove the corpus delicti, namely, the witness who deposed to the 
 contradictory evidence given by the defendant before the committee 
 of the House of Commons ; and, further, it was insisted that mere 
 proof of a contradictory statement by the defendant on another 
 occasion was not sufficient, without other circumstances showing a 
 corrupt motive, and negativing the probability of any mistake. But 
 the Court held that the evidence was sufficient, the contradiction 
 being by the 'party himself, and that the jury might infer the motive 
 from the circumstances ; and the rule was refused, (m) And the same 
 principle appears to have been acted upon in a former case. The de- 
 fendant had first made his information upon oath before a justice of 
 the peace, that three women were concerned in a riot at his mill (which 
 was dismantled by a mob on account of the price of corn), and after- 
 wards, at the sessions, when the rioters were indicted, he was exam- 
 ined concerning those women, and (having been tampered with in their 
 favour) he then swore they were not in the riot. There was no other 
 evidence on the trial of the defendant for this perjury, to prove that 
 the women were in the riot (which was the perjury assigned), but the 
 defendant's own original information on oath, which was produced and 
 read, and by which he had sworn that they were in the riot. And the 
 iudee thought this evidence sufficient, and the defendant was convicted 
 and transported, (n) And with respect to this evidence, it has been 
 observed, that when the same person has by opposite oaths asserted 
 and denied the same fact, the one seems sufficient to disprove the 
 other; and with respect to the defendant (who cannot contradict 
 what he himself has sworn) is a clear and decisive proof, and will 
 warrant the jury in convicting him on either, for whichsoever is 
 given in evidence to disprove the other, it can hardly be in the de- 
 fendant's mouth to deny the truth of that evidence, as it came from 
 himself, (o) 
 
 But where the defendant was indicted for perjury, alleged to have 
 been committed on the trial of an indictment for larceny, and it ap- 
 peared that the defendant had sworn to several material facts before 
 the committing magistrate, but when he was called on the trial, 
 denied the whole of what he had stated before the magistrate ; and 
 
 been admissible, it would only have been In R. v. Hook, infra, Pollock, C. B., doubted 
 
 the written statement of the witness and whether any conviction would now be per- 
 
 not on oath; and the time when it was mitted in such a case as R. v. Knill. 
 made and the veracity of its statements («) Anon. cor. Yates, J., Lancaster 
 
 must have rested on his single oath. See Sum. Ass. 1764. And afterwards, Lord 
 
 R. v. Lara, 6 T. R. 565, in support of this Mansfield, 0. J., and Wilmot, J., and Aston, 
 
 reasoning. In R. v. Boulter, swpra, p. 370, J., to whom Yates stated the reasons of his 
 
 • it was not even suggested that the prose- judgment, concurred in his opinion. Notes 
 
 outer's books could be used to corroborate toR. v. Harris, 5 B. & A. 939, MS. Bayley, J. 
 his evidence. (o) From the Precedent-book of Cham- 
 
 (m) R. v. Knill, 5 B. & A. 929, note (a), bre, J., cited 5 B. & A. ibid.
 
 CHAP. 
 
 XII.] 
 
 Of Perjury and Subornation of Perjury. 
 
 373 
 
 R. v. Knill and Anon, (p) were cited to show that the contradiction by 
 the oath before the magistrate would alone be sufficient evidence to 
 convict the defendant; but Gurney, B., held, that it was not sufficient 
 to prove that the defendant had, on two different occasions, given 
 directly contradictory evidence, although he might have wilfully done 
 so ; but that the jury must be satisfied affirmatively that what he 
 swore at the trial was false, and that would not be sufficiently shown 
 to be false by the mere fact that the defendant had sworn the contrary 
 at another time ; it might be that his evidence at the trial was true, and 
 his deposition before the magistrate false. There must be such con- 
 firmatory evidence of the defendant's deposition before the magistrate, 
 as proved that the evidence given by the defendant at the trial was 
 false, (q) 
 
 So where a prisoner was indicted for perjury in evidence given be- 
 fore a grand jury, and her deposition on the hearing of the charge 
 before the committing magistrate was put in to show that the state- 
 ment before the grand jury was false ; Tindal, C. J., held, that further 
 evidence must be given ; for if the two contradictory statements on 
 oath alone were proved, non constat which was the true one. (r) 
 
 (p) Supra, notes {m) and (n). 
 
 (q) R. v. Wheatland, 8 0. & P. 238. 
 Although at first sight this decision may 
 seem at variance with those cited, perhaps 
 it may not in fact be so. In R. v. Knill, the 
 Court held that ' the jury might infer the 
 motive from the circumstances,' none of 
 which are stated in the short minute of the 
 case ; some of them might have been such 
 as to show that the one statement was false, 
 or the other statement true. In the Anony- 
 mous case the defendant had been tampered 
 with after his first examination, and the evi- 
 dence of the tampering with the defendant 
 might be such as to lead to the conclusion 
 that his evidence on the trial was false. But 
 supposing those cases to go the length of 
 establishing the proposition, that the defend- 
 ant's own evidence upon oath is sufficient to 
 contradict the evidence on which the perjury 
 is assigned, it is conceived they cannot be 
 supported. The prosecutor may charge the 
 perjury either on the one statement or on the 
 other, and- whichever he selects it is clear 
 that the defendant could not avail himself of 
 a plea of autrefois acquit, or convict in case 
 he were subsequently indicted for the other, 
 and therefore he might be twice put in jeop- 
 ardy, and perhaps twice convicted for the 
 same offence. The judgment in R. v. Harris, 
 5 B. & Aid. 926, is conclusive to show that 
 this is a good objection. Again, such evi- 
 dence leaves it wholly uncertain which of the 
 two statements is true ; now it is a clear rule 
 of criminal law that if the evidence on the 
 part of the prosecution leaves it wholly un- 
 certain whether the crime charged has been 
 committed or not, the defendant must be 
 acquitted ; and as to the observation that 
 ' it can hardly be in the defendant's mouth 
 to deny the truth of the evidence that came 
 from himself,' it must be remembered that 
 there are two statements upon oath, and if 
 
 he is to be concluded from denying one to be 
 true, the same reason would conclude him 
 from denying the other, and it would surely 
 be very unreasonable to hold that he is con- 
 cluded to deny the truth of whichever the 
 prosecutor may think fit to select. It is con- 
 ceived, also, that an indictment charging 
 each of the statements to be false in separate 
 counts could not succeed. The charges being 
 directly contradictory the one to the other, 
 it may be doubted whether the grand jury 
 would be warranted in finding such an in- 
 dictment ; or, if found, whether it would not 
 be bad on the face of it ; and as the defend- 
 ant could only make a defence to one charge 
 by proving himself guilty of the other, the 
 judge would probably insist upon the prose- 
 cutor electing on which charge he would 
 proceed. But supposing these difficulties to 
 be surmounted, it is not easy to see how it 
 would be possible for the jury to find a ver- 
 dict without any evidence to show which 
 statement was false. If they found a general 
 verdict they would at one and the same time 
 find each of the statements to be both true 
 and false, unless indeed they were satisfied 
 that the defendant had, upon both occasions, 
 wilfully sworn to matters about which he hail 
 no knowledge at all. Ante, pp. 294, 361. 
 C. S. G. 
 
 (/•) R. v. Hughes, 1 C. & K. 519. The 
 false statement before the grand jury was 
 that certain tablecloths were the property 
 of the prisoner's son, and she had sworn 
 before the magistrates that they were her 
 husband's ; and evidence of the state of the 
 family was given to prove that the latter 
 statement must be true ; but Tindal, C. J., 
 thought that there was so much doubt 
 whether the prisoner might not have sworn 
 under a misapprehension, that he directed 
 an acquittal.
 
 374 Evidence. [book ii. 
 
 And where the prisoner was indicted for perjury, and it appeared that 
 she had made two statements on oath, one of which was directly at va- 
 riance with the other; Holroyd, J., is reported to have said, 'Although 
 you may believe that on one or other occasion she swore that 
 which was not true, it is not a necessary consequence that she com- 
 mitted perjury ; for there are cases in which a person might very hon- 
 estly and conscientiously swear to a particular fact, from the best of 
 his recollection and belief, and from other circumstances at a subse- 
 quent time, be convinced that he was wrong, and swear to the reverse, 
 without meaning to swear falsely either time. Again, if a person 
 swears one thing at one time, and another at another, you cannot con- 
 vict where it is not possible to tell which was the true and which was 
 the false.' (s) 
 
 The prisoner, a policeman, laid an information against a publican for 
 keeping open his house after lawful hours on the fast day, and on the 
 hearing of the information swore that he knew nothing of the matter, 
 except what he had been told by another person, and that 'he did not 
 see any person leave the publican's house after eleven ' on the night in 
 question. Perjury was assigned on this last allegation. It was proved 
 by the clerk of the magistrates that the prisoner on laying the informa- 
 tion said, he had caught the publican ; he had last night seen four men 
 leave his house after eleven ; one of them he could swear to ; it was 
 Williamson ; he knew him by his coat. Another witness proved that 
 the prisoner, on another occasion, made the same statement to him. A 
 third witness, Williamson, proved that, on a third occasion, the pris- 
 oner repeated the statement with the variation, ' One I can swear to ; 
 it was your brother.' It was proved that Williamson and others had 
 left the house on that night after eleven. The prisoner on the hear- 
 ing of the information acknowledged that he had offered to smash the 
 case for 30s. He told another witness he should make the publican 
 give him money to settle it ; another witness heard him offer the pub- 
 lican to settle it for 11., saying he was risking perjury , and another 
 witness proved that the prisoner owned he had received 10s. to smash 
 the case, and was to have 10s. more. It was objected that there was 
 no sufficient evidence, as these were only the statements of the pris- 
 oner not on oath against that on oath. But, on a case reserved, it was 
 held that the conviction was right. In addition to the statements of 
 the prisoner, there were strong confirmatory circumstances. The pris- 
 oner's offering to smash the case for one pound, his admitting that 
 he had received 10s. and was to receive 10s. more, and his talking of 
 making the publican pay to settle it, are strong evidence to show that 
 what he stated upon his oath was false, and that his statements not 
 upon oath were true, (t) 
 
 (s) Mary Jackson's case, 1 Lew. 270. witnesses, which go to show that that which 
 (0 R. v. Hook, D. k B. 606. Wight- he stated when not upon oath was true ; and 
 man, J., said, 'It is not necessary that there therefore you have two pieces of evidence. 
 should he two independent witnesses to con- I ought rather to put it that, instead of two 
 tradict the particular fact, if there be two witnesses being necessary to prove each fact, 
 pieces of evidence in direct contradiction. you must have the evidence of two persons 
 Here one piece of evidence is that the pri- giving evidence in contradiction to what has 
 soner himself is proved to have made been sworn to by the prisoner ; as, one wit- 
 statements directly contrary to his statement ness who could prove, as in this case, that 
 on oath ; that alone would not do ; but in on other occasions the prisoner had stated 
 addition to that you have the oaths of other that which was diametrically opposed to that
 
 chap, xii.] Of Perjury and Subornation of Perjury. 375 
 
 In the following case, it was doubted whether the rule, which 
 requires two witnesses was satisfied by several witnesses, each sup- 
 porting a separate assignment of perjury, but no two speaking to the 
 same assignment. Upon the trial of an indictment for perjury, alleged 
 to have been committed by an insolvent debtor in falsely swearing 
 to the correctness of his schedule, the defendant's account-book, 
 given by him to the Insolvent Debtors Court, was put in, and several 
 persons, whose names were specified in the indictment as debtors, and 
 omitted in the schedule, appeared in the book as debtors to the defend- 
 ant, and ' paid ' was marked to their accounts in the defendant's writ- 
 ing. These persons were called, and stated that they did not pay 
 until after the petition and schedule. It was objected that this was 
 not sufficient evidence, inasmuch as it was only oath against oath, the 
 defendant having sworn that the debts were paid ; a single witness, 
 with respect to each particular debt, swore that it was not paid at the 
 particular time of the schedule. Lord Tenterden, C. J., ' I feel the 
 force of the objection. It is a very important point whether the de- 
 fendant's book, and the oath on one side, be not met by the oath of the 
 witnesses on the other side. It would be very difficult to give any 
 other evidence. I will not stop the case. If the defendant is con- 
 victed, you can move for a new trial.' (u) 
 
 But it has since been held, that the rule which requires two wit- 
 nesses, or one witness and some sufficient corroboration, applies to 
 every assignment of perjury in an indictment. Where, therefore, an 
 indictment contains several assignments of perjury, it is not sufficient 
 to disprove each of them by one witness ; but in order to convict on 
 any one assignment, there must be either two witnesses, or one wit- 
 ness and corroborative evidence, to negative the truth of the matter 
 contained in such assignment. The prisoner was indicted for perjury 
 alleged to have been committed in an affidavit to obtain a criminal 
 information, in which he had sworn that he had paid all his debts, 
 except two, as to which there was an explanation, and there were 
 several assignments of perjury averring that he had not paid certain 
 persons who were named (besides the two excepted ones), and such 
 persons proved that they had not been paid, but only spoke to their 
 respective debts not having been paid; Tindal, C. J., held that this 
 was not sufficient, and that as to each debt there should be the 
 testimony of two witnesses, or of one witness, and such confirma- 
 tory evidence as was equivalent to the testimony of a second 
 witness, (v) 
 
 which he has sworn, and the other witness (u) R. v. Mudie, 1 M. & Rob. 128. The 
 
 to give evidence of that which is directly defendant was acquitted on another ground ; 
 
 opposite. You have therefore two contra- see the same case, post, p. 398. 
 
 dictions : you have the contradiction of the (v) R. v. Parker, Stafford Sum. Ass. 
 
 prisoner himself, as deposed to on oath by 1842. MSS. C. S. G. and C. & M. 639. 
 
 one witness, and you have the contradiction Where an assignment of perjury was in the 
 
 of another independent witness, who speaks vague terms that defendant falsely swore 
 
 to the falsehood of the fact ; you, therefore, that he had not treated a certain person to 
 
 have two independent contradictions on brandy, &c, on a certain day, instead of in 
 
 oath.' It is to be observed that, as it was the definite terms, that he had not treated 
 
 proved that in fact the men did leave the him at a particular public-house, on a certain 
 
 public-house, as stated by the prisoner when day, it was held, that proof of treating at 
 
 he laid the information, the only question two public-houses by two distinct witnesses^ 
 
 really was whether he saw them leave it. was sufficient to support a conviction, be-
 
 376 Evidence. [book it. 
 
 The rule that the testimony of a single witness is insufficient to 
 warrant a conviction on a charge of perjury, is an arbitrary rule, 
 founded upon the general apprehension that it would be unsafe to 
 convict in a case where there is merely the oath of one man to be 
 weighed against the oath of another ; (w) and it should be observed 
 that this rule does not extend to all the facts, which are necessary to 
 be proved on the trial of an indictment for perjury ; but only to the 
 proof of the falsity of the matter upon which the perjury is assigned: 
 Thus, the holding of the court, the proceedings in it, the administering 
 the oath, and even the evidence given by the defendant, may all be 
 proved by one witness, (x) 
 
 The prisoner was indicted for having falsely sworn that one Prosser 
 never was out of his sight between the hours of 7 A. m. and 10 a. m. on 
 a certain day, and two witnesses proved that they saw Prosser at 8.30 
 a. m. on that day near Lane's Fallow, but could not tell whether the 
 prisoner was in sight of Prosser or not, as the fences were high. Another 
 witness proved that at 9 A. m. the same morning he saw the prisoner 
 alone and on foot at a place more than six miles from Lane's Fallow. 
 It was objected that the assignment of perjury was not proved by two 
 witnesses. Patteson, J., ' It is necessary to have two witnesses to prove 
 an assignment of perjury ; but there need not be two witnesses to 
 prove every fact necessary to make out an assignment of perjury. If 
 the false swearing be that two persons were together at a certain 
 time, and the assignment of perjury that they were not together at 
 that time, evidence by one witness that at the time named the one 
 was at London, and by another witness that the other was at York, 
 would be a sufficient proof of the assignment of perjury.' (y) 
 
 Where a statement made by a prisoner is in the nature of an admis- 
 sion that a previous statement on oath is false, it is to be dealt with 
 as a confession, and not as falling within the cases which have just 
 been noticed, (z) 
 
 Where on an indictment for perjury committed, on a trial before a 
 Queen's counsel at the assizes, his notes of the evidence, proved to be 
 in his handwriting, were tendered in evidence ; Talfourd, J., held that 
 they were inadmissible, (a) 
 
 Competency of Witnesses. — The incompetency of witnesses on the 
 ground of interest is removed by the 6 & 7 Vict. c. 85, 14 & 15 Vict, 
 c. 99, and 16 & 17 Vict. c. 83, and therefore the decisions on that sub- 
 ject are omitted. See these statutes, noticed Vol. III. Evidence. 
 Husbands and wives are still incompetent as witnesses for or against 
 each other in many criminal cases, and it is probable that perjury might 
 be assigned on the evidence of a witness who was so incompetent. 1 
 
 cause any witness of a treating at a separate (z) See R. v. Hook, D. & B. 606, per 
 
 time and place on the same day, was sum- Byles, J. 
 
 cient corroboration of the witness who spoke (a) R. v. Child, 5 Cox, C. C. 197, and 
 
 only to one act of treating. R. v. Hare, 13 statements made by a judge in giving judg- 
 
 Cox, C. C. 174. Denman, J. ment in an action are not admissible in 
 
 \w) 3 Stark. Evid. 859. evidence on a prosecution for perjury against 
 
 \x) See 2 Hawk. P. C. c. 46, s. 10. a witness in the action. R. v. Britton, 17 
 
 (y) R. v. Roberts, 2 C. & K. 607. Cox, C. C. 627. 
 
 American Kote. 
 1 It is perjury in America for a person Am. D. 255 ; S. v. Molier, 1 Dev. 263 ; 
 to swear falsely in a matter duly pending, Montgomery v. S., 10 Ohio, 220 ; P. v. 
 though such person is incompetent as a wit- Brown, 54 Midi. 15 ; P. v. Courtney, 31 
 ness. Chamberlain v. P., 23 N. Y. 85j 80 Hun, 199, 94 N. Y. 490.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 377 
 
 Where a bill of indictment was preferred against the defendant for 
 perjury, alleged to have been committed on a trial at the Quarter 
 Sessions, and it was proposed to examine one of the grand jury, who 
 had acted as chairman of the Quarter Sessions at the trial at which 
 the alleged perjury was committed, but that gentleman expressed a 
 desire not to be examined as a witness, and the grand jury wished to 
 know whether they ought to examine him or not ; Patteson, J., held 
 that they ought not to examine him. He was the president of a Court 
 of Record, and it would be dangerous to allow such an examination, as 
 the judges of England might be called upon to state what occurred 
 before them in court, (b) 
 
 In a case of perjury where the statements of the prisoner had not 
 been taken down and were proved from memory, some observations 
 being made as to the judge of the county court who had tried the case 
 not being called to prove his notes, though he was willing to appear ; 
 Byles, J., said that the judges of the superior courts ought not, of course, 
 to be called upon to produce their notes. If he were subpoenaed for 
 such a purpose he should certainly refuse to appear. But the same 
 objection was not applicable to the judges of inferior courts ; he saw 
 no reason why they should not be called, especially where, as in this 
 case, the judge was willing to appear, (c) 
 
 It has been holden, that if a count in an indictment for perjury un- 
 dertake to set out continuously the substance and effect of what the 
 defendant swore when examined as a witness, it is necessary in support 
 of this count, to prove that in substance and effect he swore the whole 
 of that which is thus set out as his evidence, although the count con- 
 tains several distinct assignments of perjury. It was urged in support 
 of the prosecution that reddendo singula singulis, the defendant was 
 charged with swearing separately in answer to all the questions that 
 were mentioned. But Lord Ellenborough, C. J., said, ' Suppose you 
 had undertaken to set out the tenor of what the defendant swore, and 
 it should appear by the evidence that he had not sworn a material 
 part of that which was set out, would not this have been fatal ? Hav- 
 ing taken upon you to state the substance and effect of what he swore, 
 you are not bound down to precise words ; but must you not prove 
 that he swore in substance and effect the whole that you have stated ? 
 You aver that part of the defendant's evidence concerning the assur- 
 ance given by Lord Headley to be material, and you have not proved 
 
 (b) E. i'. Gazard, 8 C. & P. 595. In R. chairmen of Quarter Sessions is compara- 
 v. Jones, 6 C. & P. 137, on an indictment tively slight, especially as they are usually 
 for perjury the chairman of the Worcester- present at the Assizes, and the evidence must 
 shire Quarter Sessions proved what a witness be given in the county where they are chair- 
 swore on a ti'ial before him at the Quarter men. Assuming, however, that the incon- 
 Sessions. In K. v. Gazard, the chairman veniences in their case were considerable, it 
 was required as a witness for the same pur- seems worthy of further consideration how 
 pose, and, not being examined, the bill was far that can prevent their liability to be 
 ignored. Mr. Starkie, after citing this case, called as witnesses. The general rule un- 
 adds a quaere, without stating any reason for doubtedly is, that every person is liable to 
 so doing. 3 Stark. Evid. 861. It may, be compelled to give evidence in a criminal 
 however, have struck him that no sufficient case, and it may be dangerous to introduce 
 reason could be assigned for the decision. It exceptions which may prevent persons from 
 would, no doubt, be extremely inconvenient giving evidence either for the crown or for 
 if the judges were called upon to give evi- the defendant. C. S. G. 
 dence as to what occurred before them in (c) K. v. Harvey, 8 Cox, C. C. 99. 
 court, but the inconvenience in the case of
 
 378 Evidence. [book ii. 
 
 that lie swore to any such assurance. Did you ever know the rule 
 reddendo singula singulis applied to a niisrecital ? Is there any au- 
 thority to show that under secundum substantiam you are not bound 
 to prove the substance of what you state, as under secundum tenorem 
 you are bound to prove the tenor ? To hold otherwise would be to 
 introduce a most dangerous latitude into criminal proceedings. I am 
 decidedly of opinion that you have failed in the proof of a substantial 
 allegation. It is essential to the security of innocence that words set 
 out in the record should be either literally or substantially proved. 
 A person giving his assurance generally, and giving his assurance for 
 the performance of a particular stipulation, are allowed to be entirely 
 different. If a man swears falsely to several material questions, these 
 may be included in distinct counts.' (d) 
 
 It appears to have been ruled, that upon an indictment for perjury 
 committed at the trial of a cause, the prosecutor must prove the whole 
 of the defendant's testimony, (e) unless the perjury be assigned upon a 
 point which first arose upon the defendant's cross-examination, in which 
 case proof of the whole cross-examination has been ruled to be suffi- 
 cient. (/) And the ground upon which proof of the whole of the ex- 
 amination or cross-examination was ruled to be necessary in these cases 
 appears to have been, that possibly the defendant might have corrected 
 in some part of such examinations any mistake he had made in other 
 parts. But it is observed that this doctrine of compelling the prose- 
 cutor to prove more than a prima facie case is an anomaly in the crim- 
 inal law ; that in general the party indicting is not bound to anticipate 
 matters of defence, which it lies on the prisoner to bring forward ; and 
 
 (d) R. v. Leefe, 2 Campb. 134. The that the said J. L. asked the defendant if the 
 
 learned reporter says, ' I rind no decision or expenses were secured ; and that the defend- 
 
 dictum in the books as to the evidence of the ant told the said J. L. his lordship had given 
 
 words sworn which is necessary to support his assurance that it should be so. The assign- 
 
 an indictment for perjury. For the general ments of perjury negatived each of these 
 
 principles upon this subject, vide 2 Hawk. statements, and it was proved that every- 
 
 P C. c. 46, ss. 34, 35, 36. Compagnon v. thing alleged was sworn, except the last 
 
 Martin, 2 Bl. Rep. 790.' The count upon words ' that it should be so.' The decision 
 
 which the question in this case turned, in this case seems questionable. As it is 
 
 alleged that a committee was appointed and clearly settled that a defendant may be 
 
 met to try the merits of a petition complain- convicted of any one distinct assignment of 
 
 ing of an undue election, that certain ques- perjury, though acquitted of all the rest; see 
 
 tions were material, and that the defendant post, p. 395 ; there seems no reason why proof 
 
 swore ' touching the said material questions, of having sworn the matter negatived by one 
 
 and the merits of the said petition,' in sub- assignment should not be sufficient. In 
 
 stance and effect as follows, — that he, by the case of obtaining goods by false pre- 
 
 the directions of J. L., waited upon Lord H. tences, it is clearly settled that proof of any 
 
 and proposed to the said Lord H. that the one false pretence, and that the goods were 
 
 said J. L. would decline upon the expenses obtained by that pretence, is sufficient, see 
 
 being paid him, including the previous Vol. II.; and that is a stronger case, be- 
 
 expenses of the day before ; that Lord H. cause there the indictment in effect avers 
 
 agreed that the said expenses should be paid, that all the pretences operated towards the 
 
 including the expenses that had been in- obtaining the goods. In perjury each 
 
 curred at different inns in the town ; that J. assignment of perjury is separate and dis- 
 
 L. 's voters were to be applied to in conse- tinct, and the court will give judgment upon 
 
 quence of that arrangement for the purpose one, although all the others are bad in point 
 
 of voting for the said Lord H., and that the of law. R. v. Rhodes, 2 Lord Raym. 886. 
 
 defendant enumerated the expenses ; that the C. S. G. 
 
 defendant upon his return to the committee (e) R. v. Jones, Peake, N. P. C. 37, Lord 
 
 of the said J. L. communicated to them what Kenyon, C. J. 
 
 hail so passed between the said Lord H. and (/) R. v. Dowlin, Peake, N. P. C. 170, 
 
 him; and that the said committee dispersed Lord Kenyon, C. J. 
 to carry the said agreement into effect ; and
 
 chap, xii.] Of Perjury and Subornation of Perjury. 379 
 
 that it does not seeni that, in this case, the party indicted would sustain 
 hardship in being compelled to show that he had corrected the pari oi 
 his evidence assigned. Qj) And it is said by another learned writer, that 
 at most the rule seems to amount to this, that all the evidence given 
 by the defendant, in reference to the particular fact on which perjury 
 is assigned, ought to be proved, (h) And the rule hardly seems to be 
 necessary for the protection of the defendant, as it will be open to him 
 to cross-examine the witness by whom his statements upon oath are 
 proved, whether he did not in some other parts of his evidence correct 
 or explain those statements upon which the prosecution is founded, 
 and unless the witness can positively deny any such correction or ex- 
 planation, or if he admits that they may have occurred, the proof will 
 probably be deemed insufficient for a conviction. And it will of 
 course be open to the defendant to prove that any corrections or ex- 
 planations were given by him in other parts of his evidence, (i) And 
 it has since been held, upon a case reserved, that on an indictment for 
 perjury committed on the trial of a cause, it is sufficient to go to the 
 jury, if a witness states from recollection the evidence that the defend- 
 ant gave, though he did not take it down in writing, and cannot say 
 with certainty that it was all the evidence the defendant gave, if he 
 can say with certainty that it was all he gave on that point, and that 
 he said nothing to qualify it. (J) 
 
 Where a prisoner is indicted for perjury in evidence given on the trial 
 of a cause, it is only necessary for the prosecution to prove so much 
 of that evidence as is relevant to the matter in issue on the trial for 
 perjury ; but if the prosecution prove the whole of his evidence, and it 
 refers to any deed or other document, which is so mixed up with it 
 that it is necessary to be read in order to make the evidence intelli- 
 gible, the prisoner is entitled to have it put in and read for that pur- 
 pose ; but he is not entitled to require it to be regularly proved by 
 calling the attesting witness or the like, (k) 
 
 Proof of authority to administer the oath. — It is sufficient, to sup- 
 port the averment that the party administering the oath had compe- 
 tent authority for that purpose, to show in the first instance that he 
 acted as a person having such authority. Thus, upon an indictment 
 for perjury before a surrogate in the Ecclesiastical Court, it was ruled, 
 that the fact of the person who administered the oath having acted 
 as a surrogate was sufficient primd facie evidence of his having been 
 duly appointed, and having authority to administer it. And Lord 
 
 (g) 2 Chit. Crini. L. 312, referring to 1 true rule to be this, that all the evidence 
 
 Sid. 418, Rex v. Carr. referable to the fact on which the perjury is 
 
 (h) 3 Stark. Evid. 858. And the author assigned must be proved.' In R. v. Munton, 
 further observes, that the rule even to this 3 C. & P. 498, three witnesses stated what 
 effect appears to be a doubtful one ; for when the defendant had said on the trial of an 
 it has once been proved that particular facts, indictment for an assault, and the defendant 
 positively and deliberately sworn to by the was convicted, although none of the wit- 
 defendant in any part of his evidence, were nesses took down the evidence as it was 
 falsely sworn to, it seems in principle to be given, and none of them professed to state 
 incumbent on him to prove, if he can, that the whole of the evidence given. And this 
 in other parts of his testimony he explained course has been followed in subsequent cases, 
 or qualified that which he had so sworn. R. v. Meek, reported, 9 C. & P. 513, as to 
 
 (i) R. v. Carr, 1 Sid. 418. another point. R. v. Ann Bird, Gloucester 
 
 (j) B. v. Rowley, R. & M. C. C. R. Ill, Spr. Ass. 1842, Cress well, J. 
 and R. & M. N. P. R. 229, where Little- (k) R. v. Smith, 1 F. & F. 98, Erie, J. 
 
 dale, J., is reported to have said, ' I take the
 
 380 Evidence. [book ii. 
 
 Ellenborough, C. J., said, ' I think the fact of Dr. Parson having 
 acted as surrogate is sufficient prima facie evidence that he was duly 
 appointed and had competent authority to administer the oath. I 
 cannot for this purpose make any distinction between the Ecclesias- 
 tical Courts and other jurisdictions. It is a general presumption of 
 law, that a person acting in a public capacity is duly authorized so to 
 do.' (I) But it was holden, in the same case, that upon its appearing 
 that the surrogate was appointed contrary to the canon (which re- 
 quires that no judicial act shall be speeded by any ecclesiastical judge, 
 unless in the presence of the registrar or his deputy, or other persons 
 by law allowed in that behalf), his appointment was a nullity and 
 the averment that he had authority to administer the oath was nega- 
 tived, {m) So where perjury was assigned upon an affidavit sworn 
 before Chell, a commissioner, &c, and it was proved that Chell acted 
 as a special commissioner for taking the affidavits of parties in prison, 
 or unable from sickness to attend before a judge ; Patteson, J., held 
 that this was sufficient evidence that Chell was a commissioner, and 
 that it was not necessary to prove the commission under which the 
 affidavit was taken, upon the general principle that a person acting as 
 a public officer must be taken to have authority as such, and that a 
 commissioner for taking affidavits came within that principle, (n) So 
 where an affidavit was alleged to have been sworn before R. G. 
 Whatley, a commissioner, ' then and there being duly authorized and 
 empowered to take affidavits in the said county of G. in or concerning 
 any cause depending in Her Majesty's Court of Exchequer,' and it was 
 proved that Whatley had acted as a commissioner for taking affidavits 
 in the Court of Exchequer for ten years ; but had never seen his com- 
 mission. He had however, directed it to be applied for ten years 
 before through his agent, and had been told by him that it had been 
 granted ; it was held that Whatley's acting as a commissioner was 
 prima facie evidence that he was so. (o) 
 
 Where in order to prove an allegation in an indictment for perjury 
 that a county court was duly constituted under the 9 & 10 Vict. c. 95, 
 a Gazette was put in, but it turned out to be a wrong one ; Maule, J., 
 held that proof that the judge acted in the capacity of a judge of 
 the court in pursuance of and under the County Courts Act, would 
 suffice, (jp) 
 
 It has been held that an indictment for perjury in an affidavit sworn 
 in the Insolvent Debtors Court by an insolvent, respecting the state 
 of his property and expenditure, for the purpose of obtaining an ex- 
 tended time to petition under the 7 Geo. 4, c. 57, s. 10, cannot be 
 
 (I) R. v. Verelst, 3 Campb. 432. R. v. The defendant had requested Whatley to act 
 
 Cresswell, 2 Chit. Cr. L. 312. S. P. per as commissioner in taking this particular 
 
 Lord Ellenborough, C. J. affidavit. 
 
 (m) R. v. Verelst, supra. (p) R. v. Ward, 3 Cox, C. C. 279. The 
 
 (/') R. v. Howard, 1 if. & Rob. 187. same has been held with regard to a deputy 
 
 (o) R. v. Newton, 1 C. & K. 469. Atch- countv court judge. R. v. Roberts, 14 Cox, 
 
 erley, Serjt., after consulting Tindal, C. J C. C.'lOl. 1 
 
 American Note. 
 1 The same doctrine appears to prevail expressed by some judges. Lambert v. P., 
 in America. Straight v. S., 39 Ohio St. 496, 76 New York, 220, 231; U. S. v. Curtis, 107 
 but in New York a contrary view has been U. S. 671.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 381 
 
 supported, without proving that the court by its practice required such 
 an affidavit : and it was also held that such proof was not given by an 
 officer of the court producing printed rules, purporting to be rules of 
 the court, which he had obtained from the clerk of the rules, and was 
 in the habit of delivering out as the rules of the court, but which 
 were not otherwise shown to be sanctioned by the court ; the officer 
 professing to have no knowledge of the practice except from such 
 printed rules. (7) 
 
 The oath must be proved as alleged. 1 — The taking the oath must be 
 proved as it is alleged. Therefore, if it be averred that the defendant 
 was sworn upon the Holy Gospels, &c, and it turned out that he was 
 sworn in some other manner, according to some particular custom, and 
 not upon the Gospels, the variance will be fatal, (r) But where the 
 allegation in an indictment was, that on the trial of an action the 
 prisoner ' was duly sworn, and took his corporal oath on the Holy 
 Gospel of God,' and the proof was that the witness was sworn and 
 examined ; and it was objected that the particular mode of swearing- 
 must be proved, as the evidence given would apply to the oath of a 
 Jew, or person of any other religion than the Christian ; Littledale, J., 
 held the evidence sufficient, as the ordinary mode of swearing was the 
 one specified. («s) The indictment stated that the prisoner was sworn 
 to speak ' the truth, the whole truth and nothing but the truth,' and 
 it was proved that the oath taken was in the form, ' you shall true 
 answer make.' Watson, B., held this to be no variance, (f) 
 
 The recital of the place where the oath is administered in the jurat 
 has always been considered as a sufficient proof that the oath was 
 administered at the place named, (u) Where, therefore, perjury was 
 assigned on an answer in chancery, and the defendant's signature to 
 the answer, and that of the Master in Chancery to the jurat, were 
 proved, and that Southampton Buildings, which the jurat recited as 
 the place where the oath was administered, was in the county of 
 Middlesex ; Lord Tenterden, C. J., held that this was sufficient proof 
 that the oath was administered in Middlesex, (v) So where on an 
 indictment for perjury committed in an affidavit, the original affidavit 
 was produced ; and it was proved to be signed ' John Turner,' in the 
 
 (q) R. v. Koops, 6 Ad. & E. 198, 1 N. & (5) R. v. Rowley, R. & M. N. P. R. 299. 
 
 P. 828. It was also contended for the defend- \t) R. v. Southwood, 1 F. & F. 356. 2 
 
 ant that the Insolvent Court had no power (u) Per Lord Tenterden, C. J. R. r. 
 
 to make the rule, and that the offence was Spencer, R. & M. N. P. R. 97. 1 C. & P. 
 
 at any rate not perjury; but no opinion was 260. 
 
 expressed upon these points. (v) R. v . Spencer, supra. 
 
 (?•) 3 Stark. Evid. 857. R. v. M' Arthur, 
 Peake's case, 155. 
 
 American Notes. 
 
 1 If a witness in taking the oath by acci- 525 ; S. v. Mace, 86 N. C. 668 ; U. S. v. 
 
 dent kisses a book not the Gospels, neither Baer, 18 Blatch. 493. 
 
 he nor the Court being aware of the mistake, 2 The mere form is immaterial. S. v. 
 
 perjury may be assigned on the false evi- Dayton, 53 Am. D. 270; S. v. Owen, 72 
 
 dence of the witness. P. v. Cook, 4 Seld. 1ST. C. 604; Edwards v. S., 49 Ala. 334; 
 
 67, 59 Am. D. 451. Kissing the book or Faith v. S., 32 Tex. 373; Johnson v. S., 76 
 
 lifting up the hand are directory only, and Ga. 790. But the substance must be followed, 
 
 not essential. C. v. Smith, 11 Allen, 243 ; Maher v. S., 3 Minn. 444 ; S. v. Trask, 42 
 
 R. v. Haly, 1 Crawf. & Dix, C. C. 199, but Vt. 152. 
 see O'Reilly v. P., 86 N. Y. 154, 40 Am. R.
 
 382 Evidence. [book ii. 
 
 handwriting of the prisoner, and the jurat was ' Sworn in opjen court 
 at Westminster Hall, the 10th day of June, 1846, By the court,' and 
 it was proved that the words ' By the court' were in the handwriting 
 of one of the masters of the court, by whom the jurats of affidavits 
 are signed when the affidavits are sworn in court ; it was objected 
 that it should be shown that the master was in court when the pris- 
 oner was sworn before him. Erie, J., ' We have proof of the hand- 
 writing of the party sworn, and of the officer, who is authorized to 
 administer the oath ; and when an officer thus authorized writes under 
 a proper jurat the words "By the court," I think that that is sufficient 
 evidence that the affidavit was sworn before him, and properly sworn 
 in court.' (w) But a variance as to the place of taking the oath will 
 not be material, if it be proved to have been taken in the county 
 where the defendant is indicted, (x) And upon an indictment in 
 Middlesex, it may he shown that the oath was in fact taken in Mid- 
 dlesex, although the jurat state it to have been sworn in London, (y) 
 
 On a trial in Michaelmas term, 52 Geo. 3. of an indictment against 
 a bankrupt for perjury before the commissioners in passing his 
 last examination under the bankrupt laws then in force, Lord Ellen- 
 borough said, ' I am strongly inclined to think that you ought to give 
 strict evidence of the bankruptcy. Unless the defendant really was a 
 bankrupt, the examination was unauthorized. It goes to the authority 
 of the commissioners to administer the oath. Their authority takes 
 its root, not in the commission, but in the bankruptcy. While the 
 commission subsists its validity may be assumed for certain civil 
 purposes ; but when a criminal case occurs, unless the party was 
 a bankrupt all falls to the ground. However I will save the 
 point.' (z) 
 
 The indictment stated that A. P. carried on the business of a builder, 
 and that he was indebted to W. B. in the sum of 100/. and upwards ; 
 that he committed an- act of bankruptcy ; that a fiat issued against 
 him, on the petition of W. B. ; that the commissioners adjudicated 
 A. P. to be a bankrupt ; that in the prosecution of the fiat it became 
 material to inquire into the estate and effects of A. P. ; and that at 
 a meeting of the commissioners the defendant appeared before them 
 as a witness, and was sworn, &c. It appeared that the debt due to 
 W. B, was much less than 100/., but that there were two other credi- 
 tors, to each of whom A. P. owed more than 100/. ; therefore, under 
 the 6 Geo. 4, c. 16 (the Bankrupt Act then in force), s. 18, the Lord 
 Chancellor might, on application, have directed the substitution of a 
 good petitioning creditor's debt for that of W. B., but that in fact 
 this had not been done. It was objected that the defendant was en- 
 titled to be accpaitted, as the averment that W. B. was a creditor to 
 the amount of 100/. was not only not proved, but was disproved. 
 The counsel for the crown cited E. v. Rcqihael, (a) where Abbott, J., 
 held, that on an indictment against a third person, examined before 
 commissioners of bankrupt, their declaration that a party was a bank- 
 rupt is sufficient. The defendant having been convicted, the judges, 
 upon a case reserved, held the conviction wrong, (b) 
 
 [}>■) R. v. Turner. 2 C. & K. 732. (z) R. v. Punshon, 3 Campb. 96. See R. 
 
 (x) R. V. Taylor, Skin. 403. v. Bullock, 1 Taunt. 71. 
 
 (y) R. v. Emden, 2 East, 437. 3 Stark. (a) Manning's lad. 232. 
 
 Evid. 858. (b) R. v. Ewington, 2 M. C. C. R. 223.
 
 chap. XII.] Of Perjury and Subornation of Perjury. 383 
 
 On an indictment for perjury, in an answer in chancery, sworn 
 before the passing of the Judicature Acts, the bill must be proved 
 in the usual way ; the proof of the defendant's signature, and that 
 of the master before whom the answer purports to be sworn, is 
 evidence of the defendant's having sworn to the truth of the con- 
 tents, without calling the person who wrote the jurat ; or further, 
 proving the identity of the defendant as being the very same person 
 who had signed the answer, (c) But unless there be such proof of 
 the defendant's signature, or some other sufficient proof to identify 
 him as the person by whom the oath was taken, no return of com- 
 missioners or of a master in chancery will be sufficient, (d) In a case 
 upon the 31 Geo. 2, c. 10, s. 24 (for taking a false oath to obtain 
 administration to a seaman's effects, in order to receive his wages), 
 it was holden necessary to prove, directly and positively, that it was 
 the prisoner who took the oath, (e) 
 
 An indictment for perjury alleged that the prisoner, ' being a trader 
 within the meaning of the statutes in force relating to bankrupts, but 
 owing debts amounting in the whole to less than 300Z., and having 
 resided for six calendar months next immediately preceding the time of 
 filing his petition within, &c.,' did present his petition to the Insolvent 
 Court in Portugal Street ; and the only evidence given in support of these 
 allegations was the prisoner's petition filed in that court, which alleged 
 the very same matters as facts upon the truth of which, with others, 
 the prisoner rested his application to the insolvent court ; and, on a 
 case reserved, it was held that, as against the prisoner, the statements 
 in the petition, uncontradicted by any conflicting testimony, were 
 abundant evidence to prove those allegations in the indictment. (/) 
 
 An indictment for perjury alleged that W. Turner made his will, 
 and appointed J. H. Turner, W. B. Wood, and W. T. Abud the execu- 
 tors thereof, and to prove this averment the probate of the will was 
 tendered ; it was objected that, as the will applied both to lands and 
 personalty, the original will must be produced and proved. Erie, J., 
 ' A will may in law have two operations, — the one, as to realty, re- 
 specting which the ecclesiastical courts have no jurisdiction ; the 
 other, as to personalty and executors, in which the ecclesiastical 
 courts have sole jurisdiction, and therefore, with respect to the latter, 
 the evidence of the attesting witness is not necessary here. If all 
 the matters in this indictment relate to personalty and executors, the 
 probate is the proper proof ; but if there is any question here raised 
 as to whether the testator devised lands, the original will must be 
 produced, and one of the attesting witnesses called. But if it is only 
 to be shown that the deceased made a will, and left certain persons 
 
 C. & M. 319. In the course of the argument the bankrupt's property.' See Vol. II., 
 
 before the judges, Lord Abiuger, C. B., said, Bankrupts. 
 
 ' You cannot dispute the authority of the (c) K. v. Benson, 2 Campb. 508. R. v. 
 
 commissioners to take the preliminary pro- Morris, 2 Burr. 1189. 1 Leach, 50. The 
 
 ceedings under the fiat, to ascertain whether reason why the Court of Chancery made a 
 
 the part)' should be adjudged bankrupt or general order that all defendants should sign 
 
 not. They were authorized to do that by their answers was with a view to the more 
 
 the fiat of the Lord Chancellor ; but you say easy proof of perjury in answers. 2 Burr. 
 
 that if there was no good petitioning credi- 1189. See R. v. Turner, 2 C. & K. 732. 
 
 tor's debt, the commissioners had no author- (rf) Id. ibid. 
 
 ity to inquire and examine witnesses as to (e) Brady's case, 1 Leach, 327. 
 
 (/) R. v. Westley, Bell, C. C. 193.
 
 384 Evidence. [book ii. 
 
 executors of it, I shall hold the production of the probate to be the 
 proper proof.' (#) 
 
 On an indictment for perjury in a deposition sworn by the prisoner 
 as a proof of a debt against a bankrupt, it appeared that the proof 
 was placed according to the practice on a file of the proceedings, where 
 it remained for several months, and the prisoner having demanded an 
 inspection of the file, it was handed to him by the usher, and shortly 
 afterwards returned to the usher, who restored it to the customary 
 place of deposit without examination. It was afterwards discovered 
 that the proof had disappeared, and all searches for it had proved 
 ineffectual ; and an office copy under the seal of the court was ten- 
 dered in evidence. It was objected, on the authority of Taylor on 
 P^vidence, (h) that a copy could not be received in evidence in a case 
 of perjury ; but Hill, J., held that, on proof that the original had been 
 lost or destroyed, secondary evidence was admissible, (i) 
 
 In order to show the materiality of the deposition or evidence of 
 the defendant, it is essential, where perjury is assigned in an answer 
 to a bill of equity, filed before the passing of the Judicature Act, to 
 produce and prove the bill, (J) or if the assignment is on an affidavit, 
 to produce and prove the previous proceedings, such as the rule nisi 
 of the court, in answer to which the affidavit in question has been 
 made, (k) 
 
 If the assignment be on evidence on the trial of a cause, in addition 
 to the production of the record (I) the previous evidence and state of 
 the cause should be proved, or at least so much of it as shows that the 
 matter sworn was material. So also such prefatory circumstances and 
 innuendos as are averred upon the face of the indictment for the same 
 purpose must be proved, (w) 
 
 It is reported to have been held upon the trial of an information 
 for perjury, alleged to have been committed on the trial of an eject- 
 ment, that in order to prove the perjury a witness might prove what 
 a witness, who was since dead, swore on the trial of the ejectment, (n) 
 It has been observed that this ruling seems to be utterly inconsis- 
 tent with the principles now established, (o) 
 
 Some counts in an indictment for perjury committed in an affidavit 
 to oppose a summons to set aside a judgment obtained by the prisoner 
 alleged that the prisoner ' caused to be entered up final judgment in 
 the said action ; ' and a clerk from the judgment office produced from 
 that office a book in which judgments are entered up, and stated that 
 interlocutory judgment was signed in the action, and that final judg- 
 ment was afterwards entered up ; it was objected that the roll or an 
 examined copy of it ought to have been produced. It was answered 
 
 (g) R. v. Turner, 2 C. & K. 732. Twisden, J., and Morton, J., against Keel- 
 
 (1l) S. 1379, p. 1232, third edit. ing, C. J., who said it was not to be allowed, 
 
 (i) 1>. v. Milnes, 2 F. & F. 10. because between other parties. 
 
 {j) 3 Stark. Evid. 859, citing R. v. Al- (o) 3 Stark. Evid. 861, where the case is 
 
 ford, 1 Leach, 150. erroneous^ cited as Taylor v. Brown. The 
 
 (k) 3 Stark. Evid. 859. report does not show for what precise pur- 
 
 (/) R. v. lies, Hard. 118. Bull. X. P. pose the evidence was adduced; if for the 
 
 243. 2 Hawk. P. C. c. 46, s. 57, 3 Stark, purpose of proving what passed on the for- 
 
 Evid. 855. mer trial in order to show that the matter 
 
 (m) 3 Stark. Evid. 859. was material, qu. whether it was not admis- 
 
 (n) R. v. Buckworth, T. Raym. 170, per sible. C. S. G.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 385 
 
 that the 'entering up' of final judgment always takes place before 
 there is any roll carried in, and is the making of the entry in the 
 book produced ; Qj) and Lord Denman, C. J., held the proof suffi- 
 cient, (g) 
 
 Where, in order to prove an allegation in an indictment for perjury 
 that a cause came on to be tried, the nisi prius record was produced, 
 and it appeared that no postea had been indorsed upon it, but there 
 was a minute, in the handwriting of the officer, indorsed upon the 
 jury panel which was affixed to it, in these words, ' Verdict for plain- 
 tiff, damages Is.' Lord Tenterden, C. J., after consulting the other 
 judges of the Court of King's Bench, held that the officer's minute was 
 sufficient evidence that the trial took place, (r) 
 
 Where an indictment for perjury alleged that certain issues came on 
 to be tried and were tried before the sheriffs of London upon the exe- 
 cution of a writ of trial, and the postea being produced, the verdict 
 appeared to have been taken on one of two issues, without any state- 
 ment as to the event of the other, the Court of Queen's Bench held 
 that the allegation was proved by the record and postea taken together. 
 It appeared that the jury was summoned and sworn to try ' the 
 issues:' and if on one of the issues the jury had been withdrawn, 
 yet both would have come on for trial and have been tried, (s) 
 
 An indictment alleged that a certain action came on to be tried in 
 due form of law, and was duly tried by a jury of the county in that 
 behalf duly sworn. The record stated that the jury were sworn, and 
 after evidence given withdrew to consider their verdict, and after they 
 had agreed returned to the bar to give their verdict, ' whereupon the 
 plaintiff being called, comes not, &c.' It was objected that the trial 
 was not complete, as the jury had not given any verdict. It was an- 
 swered that, as far as the jury were concerned, the cause was by them 
 duly tried. They were sworn to ' truly try and a true verdict give,' 
 and they might try and yet not give a verdict ; and the objection was 
 overruled, (t) 
 
 Upon an indictment for perjury charged as having been committed 
 on the trial of an action in the High Court of Justice, the production 
 by the officer of the court of the copy writ filed under Ord. V., rule 7, 
 and the copy pleadings tiled under Ord. XLL, rule 1, is sufficient evi- 
 dence of the existence of the action, (u) 
 
 An indictment for perjury averred that there was an action pending 
 between W. C. and B. and the defendant. The writ was not produced, 
 but to show the existence of the action, the attorney for the plaintiffs 
 in the action produced a notice of set-off entitled in the cause, which 
 he had received from the attorneys for the defendant in the action ; it 
 was objected that the notice of set-off was inadmissible, as at most it 
 was only secondary evidence ; and the objection was held good, (v) 
 
 ( p) Fisher v. Dudding, 9 Dowl. P. C. (s) R. v. Schlesinger, 10 Q. B. 670. 
 
 872. (t) R. v. Brav, 9 Cox, C. C. 218. The 
 
 (q) R. v. Gordon, C. & M. 410. The Recorder, after consulting Bramwell, B., and 
 
 prisoner was convicted, and no motion made Byles, J. 
 
 on the point, as there were other counts (u) R. v. Scott, 2 Q. B. D. 415. 
 
 which did not allege the entering up of the (v) R. v. Stoveld, 6 C & P. 489. Lord 
 
 judgment. Denman, C. J. 
 
 (r) R. v. Brown, M. & M. 315. 3 C. & 
 P. 572. 
 
 vol. i. — 25
 
 386 Evidence. [book ii. 
 
 ( )n a trial for perjury at the Central Criminal Court the caption 
 of the same court of oyer and terminer or gaol delivery at which 
 the indictment for perjury is preferred, the former indictment with 
 the indorsement of the prisoner's plea, the verdict, and sentence of the 
 court thereon, together with the minutes of the trial, made by the 
 officer of the court, are sufficient evidence of the former trial, with- 
 out a regular record or any certificate thereof, (w) 
 
 An indictment alleged that there being a certain plaint lodged against 
 the prisoner in a county court, the same came on to be tried, and that 
 the prisoner was duly sworn, &c. It was proved by the clerk of the 
 court that such a plaint had been filed, (x) and it was proposed to 
 give parol evidence of the proceedings on the trial ; but it appearing 
 that there was a minute book wherein were entered the plaints, the 
 appearance of the parties and the result of the trial, it was objected 
 that that book ought to be produced, in order to prove the plaint and 
 the appearance of the prisoner. That the evidence of the prisoner 
 could not be proved by parol if it was taken down in the book. And 
 lastly, that the summons must be proved in order to give the court 
 jurisdiction. Maule, J., ' I think the want of the proof of the sum- 
 mons is answered by the fact of the prisoner's appearance, which may 
 be proved by parol. That is sufficient to carry the case on ; but, if it 
 should be necessary, I will reserve the other points ; ' and the evi- 
 dence was received, (y) 
 
 Where an indictment is preferred for perjury committed on the 
 hearing of a plaint in the county court, the only proper course to prove 
 the proceedings in that court is to produce the clerk's book or a copy 
 having the seal of the court, and purporting to be signed and certified 
 as a true copy by the clerk of the court under the 9 & 10 Vict. c. 95, 
 s. lll.(s) 
 
 An indictment for perjury alleged that a certain suit was instituted 
 in the Prerogative Court of Canterbury, in which M. S. Merry weather 
 was plaintiff, and J. Turner, J. H. Turner, W. B. Wood, and W. T. 
 Almd, defendants ; and in order to prove this allegation, an officer from 
 the registrar's office in the Prerogative Court produced from the office 
 an original allegation put in on behalf of M. S. Merryweather and the 
 original allegation put in on behalf of the executors in answer to it, and 
 proved the signatures of two advocates, who acted as advocates in the 
 court, to each of the allegations ; and Erie, J., held that this was suffi- 
 cient proof of the suit having been instituted as alleged, (a) 
 
 An indictment alleged that the prisoner appeared at a petty sessions 
 in pursuance of a summons requiring him to answer a complaint of 
 A. Jones touching a bastard child of which she alleged him to be the 
 father, and alleged that he committed perjury on the hearing of that 
 complaint. The magistrate's clerk produced a book containing the 
 minutes made by him on the occasion, headed 'Ann Jones v. Richard 
 
 (w) R. v. Newman, 2 Den. C. C. 300. not stated how the evidence given by the 
 
 The trial for perjury was in December, 1851 ; prisoner was proved. He was convicted, 
 the trial on which the perjury was committed (z) R. v. Rowland, IF. & F. 72. Bmrn- 
 
 was at a session held on the 12th of May, well, B., who said he had ruled in the same 
 
 1851, and the caption was dated on that day. way previously, and held that the proceed- 
 
 (.'■) It is not stated how this was proved. ings on hearing the plaint could not be 
 
 (y) R. v. Ward, 3 Cox, C. C. 279. It is proved by the assistant clerk of the court. 
 
 [a) R. v. Turner, 5 C. & K. 732.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 387 
 
 Newell, affiliation,' and then the evidence was set out. There was no 
 other evidence of the proceedings before the justices. It was objected 
 that the summons ought to have been produced, or notice to produce it 
 served on the prisoner. Wightman, J., ' The 7 & 8 Vict. c. 101, pro- 
 vides that " upon complaint by the mother, the justices shall have power 
 to summon the putative father, and upon the appearance of the person 
 so summoned, or upon proof of the service of the summons, to hear and 
 adjudicate upon the case." A summons was, therefore, necessary to give 
 the magistrates jurisdiction ; and to prove that they had jurisdiction in 
 this case it must be proved that the prisoner was duly summoned, either 
 by production of the summons, or by secondary evidence after notice 
 to the prisoner to produce it. The minutes of examination in this 
 case were no more than the minutes of a short-hand writer, (b) 
 
 Upon an indictment for perjury committed at the hearing of an in- 
 formation in bastardy, laid under the 7 & 8 Vict. c. 101, which indict- 
 ment alleged the application for a summons, the issuing thereof, and 
 the hearing upon it, proof of the information, of the appearance of the 
 defendant, of the hearing, of evidence being given on both sides, and 
 of no objection being made of the want of a summons, is sufficient to 
 show jurisdiction in the justices who heard the information, without 
 proof of the summons which issued upon that information : and a 
 conviction for perjury upon the above indictment was upheld, (c) 
 
 Where, upon an indictment for perjury alleged to have been com- 
 mitted on the trial of an appeal against an order of removal, the ses- 
 sions book was produced by the clerk of the peace in order to prove 
 the trial of the appeal, and the clerk of the peace stated that he would, 
 if applied to, have drawn up a record of the trial of the appeal on 
 parchment ; it was held that the sessions book was not sufficient evi- 
 dence of the trial of the appeal, (d) But it has since been held that 
 the sessions book containing the orders and other proceedings of the 
 court made up and recorded after each sessions, with an entry con- 
 taining the style and the date of the sessions, and the name of the 
 justices in the usual form of a caption, no other record being kept, is 
 good evidence of the trial of an appeal against an order of removal, (e) 
 
 Where perjury was assigned on the answer to a bill in chancery as it 
 originally stood, which bill had afterwards been amended, and the bill 
 was produced by a clerk from the six clerks' office, who stated that it 
 was an amended bill, but that it was the original record which was filed 
 in the six clerks' office in the first instance, but altered by the amend- 
 ments, which were made by altering the original record, and that these 
 alterations were all made by a clerk in the six clerks'- office, whose 
 handwriting he knew, and that that person wrote the word ' amend- 
 ment ' against each alteration ; but none of the alterations related to 
 the particular parts of the answer upon which the perjury was as- 
 signed. It was contended that this was not sufficient evidence of 
 
 (b) R. v. Newell, 6 Cox, C. C. 21, A. D. If the information is in writing it must be 
 
 1852. Three duplicate orders had been produced. R. v. Dillon, 14 Cox, C. C. 4. 
 
 made, but none of them was produced, or ' (c) R. v. Smith, 37 L. J. M. C. 6 ; see 
 
 notice to produce any of them given. See R. v. Carr, 10 Cox, C. C. C. 564. 
 the subsequent cases of R. v. Berry, ante, (d) R. v. "Ward, 6 C. & P. 366, J. A. 
 
 p. 315, and R. v. Simmonds, ante, p. 306 ; Park, J. 
 
 see R. v. Whybrow, 8 Cox, C. C. 438 ; R. v. (e) R. v. Yeoveley. 8 A. & E. 806. 
 
 Hurrell, 3 F. & F. 271. R. v. Smith, infra.
 
 388 Evidence. [book u. 
 
 what the bill was before the alterations, and that the person who 
 made the alterations ought to be called. But Lord Tenterden, C. J., 
 was of opinion that the amendments were sufficiently proved, and also 
 thought them not material to the case. (/) 
 
 In one case, upon an indictment for perjury, a copy of a bill in 
 chancery was rejected which contained many abbreviations,^) and 
 had all the dates in figures, it being proved that in the original bill 
 all the words were written at full length, and all the dates expressed 
 by words, (h) 
 
 It seems that if a party produce an affidavit, purporting to have 
 been made by him before commissioners in the country, and make use 
 of it in a motion in the cause, it will be evidence against him that he 
 made it. (i) 
 
 Where, upon an indictment for perjury committed upon a trial, the 
 supposed perjury arose upon evidence given in reply to the testimony 
 of one of the defendants on the former trial, who was acquitted and 
 examined as a witness, and the indictment for perjury did not state 
 his acquittal, nor did the minute of the verdict produced show it ; it 
 was held that, although the evidence of a shorthand writer, who stated 
 that the defendant was acquitted and then examined, was not any 
 proof of his acquittal, yet it was good proof that he was examined. (/) 
 
 If perjury is assigned upon an affidavit made by a marksman, either 
 the jurat must state that the affidavit was read over to the defendant, 
 or it must be proved that it was so read. Upon an indictment for 
 perjury in an affidavit, which was signed with the mark of the de- 
 fendant, but the jurat to which omitted to state that it was read over 
 to the defendant ; Littledale, J., said, 'As the defendant is illiterate, it 
 must be shown that she understood the affidavit. In those cases 
 where the affidavit is made by a person who can write, the supposi- 
 tion is that such person w T as acquainted with its contents, but in the 
 case of a marksman it is not so. If in such case the master by the 
 jurat authenticates the fact of its having been read over, we give him 
 credit ; but if he does not, and the fact were so, he ought to be called 
 to prove it. I should have difficulty in allowing the evidence of any 
 other person to that fact.' And no evidence being adduced to show 
 that the affidavit was read over in the presence of the defendant, it 
 was held that the assignments of perjury on this affidavit could not 
 be supported, (k) 
 
 It was held in the same case, that where one affidavit, which has a 
 perfect jurat, refers to another affidavit which is inadmissible for want 
 of proof that it was read over to the defendant, the former affidavit 
 cannot be read. (/) 
 
 Where an indictment for perjury, alleged to have been committed 
 in the Insolvent Debtors Court, stated that the defendant gave in his 
 schedule on oath that the same and all its contents were true, and 
 
 (/) R. v. Laycock, 4 O & P. 326. Tenterden, C. J., after consulting the other 
 
 \g) Such as ' possdof eonsible pnl este.' judges of the Court of King's Bench. See 
 
 (h) K. v. Christian, MSS. C. S. G. and this case as to another point ante, p. 335. 
 C. & M 388, Lord Denman, C. J. (k) R. v. Hailey, R. & M. N. P. C. 94. 
 
 (>) R. v. James, Show. 397. 3 Stark. 1 C. & P. 258. 
 Evid. 857. And see Brickell v. Hulse, 7 A. (/) R. v. Hailey, 1 C. & P. 258. The 
 
 & E. 454. report does not state in what manner the one 
 
 (/) R- v. Brown, M. & M. 315. Lord affidavit referred to the other.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 389 
 
 contained a full, true, and perfect account of all ids just debts, credits, 
 &c, and then went on to state that the said schedule and its contents 
 were not true, and that certain persons whose names were set out 
 were debtors to the defendant at the time of giving in his schedule ; 
 Lord Tenterden, C. J., held that the evidence must be confined to the 
 cases specified in the indictment, as the defendant could only come 
 prepared to answer those cases, and that evidence that other persons, 
 whose names were not set out in the indictment, were also debtors to 
 the defendant and were omitted in the schedule, was inadmissible. (/// ) 
 
 An indictment for perjury alleged that the defendant made an 
 affidavit, which stated that the creditors of the defendant were all, 
 with two exceptions (which were explained), paid in full ; whereas the 
 said creditors were not all, with two exceptions only, paid in full ; 
 and whereas divers creditors of the defendant exceeding the number 
 of two, naming several creditors, were not paid in full ; and evidence 
 being tendered of debts to other persons than those named being un- 
 paid; it was objected that the first assignment was bad as too gen- 
 eral, and that evidence as to debts due to others than those named 
 ought not to be admitted. Tindal, C. J., ' You might have demurred to 
 this assignment only, if it be too general ; and as you have not done so, 
 I do not see how I can exclude the evidence.' But ' I think that omit- 
 ting the names in one assignment of perjury and inserting them in 
 the next is likely to mislead the defendant ; as he would be very likely 
 to suppose that the debts, mentioned in general terms in one assign- 
 ment, were those particularized in the other ; ' whereon the evidence 
 was not pressed, (n) 
 
 Where an indictment for perjury alleged that Hallett exhibited a 
 bill in chancery, by which he set forth that he, Bowden, and Tucker 
 (the defendant), entered into a verbal agreement to become joint 
 dealers and co-partners in the trade or business of druggists ; and 
 assigned perjury against the defendant in swearing that he, Hallett, 
 and Bowden did not become joint dealers in the trade or business of 
 druggists ; and it appeared that Hallett was a druggist, but the de- 
 fendant and Bowden were drug brokers, and had nothing to do with 
 Hallett's shop, or the drugs sold there, but were continually in the 
 drug market ; but being brokers of the city of London they could not 
 deal in their own names and it was agreed that they should buy and 
 sell drugs in Hallett's name, and then they were to divide the profit 
 and loss. Abbott, C. J., held that the allegation in the bill in chan- 
 cery could only apply to an ordinary partnership, and not to such a 
 transaction as this, and consequently, that the indictment could not 
 be supported, (o) 
 
 Where an indictment for perjury alleged that a bill was pending 
 in the Court of Chancery, and that it became material to ascertain 
 whether an annuity granted by G. Hawkins to the defendant, or 
 granted to J. B. Bostock, as trustee for the defendant, had been paid 
 up to the year 1828, and that the defendant falsely swore that the 
 annuity had not been paid up to 1828 ; and in order to show that 
 
 («i) R. v. Mudie, 1 M. &Rob. 128. S. 0. (n) R. v. Parker, C. & M. 639. 
 
 as R. v. Moody, 5 C. & P. 23. The indict- (o) R. v. Tucker, 2 C. & P. 500. 
 
 ment is set out in the note to the latter 
 report.
 
 390 Evidence. [book ii. 
 
 Bostock, who was abroad, had paid the money to the defendant, it 
 was proved that Bostock had sent money to his banker's by his clerk ; 
 it was held that what the clerk said about the money at the time he 
 paid it into the banker's was admissible in evidence, on the ground 
 that it was a declaration made by an agent acting at the time within 
 the scope of his authority, (p) 
 
 Upon an indictment for perjury alleged to have been committed 
 upon the hearing of an information for sporting without a game certifi- 
 cate, in order to prove what the defendant swore before the magistrate, 
 his deposition taken in writing before the magistrate was put in, and 
 it was held that evidence was not admissible of other tilings stated 
 by the defendant, when he was examined as a witness before the mag- 
 istrate, but which were not contained in the written deposition, (q) 
 
 An indictment alleged that the prisoner was a member of a benefit 
 society, the rules of which were duly certified, and a transcript of them 
 filed with the clerk of the peace, and that by a rule of the society it 
 was provided that if any free member should have his property de- 
 stroyed by fire, he should produce a certificate, and if the property 
 was not insured the society would indemnify him to a certain amount 
 if the claim were authenticated by a solemn declaration before a mag- 
 istrate, and then charged the prisoner with making a false declaration 
 before a magistrate contrary to the 5 & 6 Will. 4, c. 62, s. 18, that he 
 had sustained a loss by fire. In order to prove the rules of the society 
 a copy of the rules was produced, and the 24th rule, which was appli- 
 cable to the allegations in the indictment, was proved to have been 
 examined with the transcript at the clerk of the peace's office; but no 
 other rule had been so examined; and Erskine, J., held that all the rules 
 ought to have been compared. To prove the rules, either the original 
 transcript should have been produced, or an examined copy of the whole 
 of it. It was then objected that the indictment was not proved. But 
 Erskine, J., held that all the statements in the hidictment with refer- 
 ence to the society might be rejected as surplusage, if there was enough 
 on the face of the indictment to show that an offence was committed 
 without any reference to the society or its rules, which appeared to be 
 the case. The making of the declaration was then proved, and it re- 
 ferred to the certificate, which was put in ; and Erskine, J., allowed 
 the persons whose names purported to be signed to it, to prove that 
 their names were forgeries, as it might go to show that the declaration 
 was wilfully false, (r) 
 
 ( p) R. v. Hall, 8 C. & P. 358, Little- in it from being proved by parol. The dis- 
 
 dale, J. tinction between depositions in felony and 
 
 (q) R. v. Wylde, 6 C. & P. 380, J. A in summary convictions was not noticed in 
 
 Park, J. The correctness of this decision this case, nor was any reference made to R. 
 
 seems questionable. In the case of summary v. Harris, R. & M. C. C. R. 338. And the 
 
 convictions there is no statute which requires decision in the text appears at variance with 
 
 magistrates to take down the evidence in the ordinary practice of cross-examining a 
 
 writing, and therefore what a party says in witness in cases of felony as to other state- 
 
 au examination before a magistrate on such ments made by him before the committing 
 
 an occasion may be proved by parol, whether magistrate, after his deposition has been put 
 
 anv person took it down or not. Kobinson in and read. C. S. G. 
 
 v. Yaughton, 8 C. & P. 252, Alderson, B. (?•) R. v. Boynes, 1 C. & K. 65. The 
 Inasmuch, therefore, as all the defendant declaration mentioned the name of the so- 
 said might have been proved by parol, it is ciety, and that the prisoner had 'forwarded 
 difficult to see how the deposition being put to the said society a certificate as required by 
 in could prevent other matters not contained the 24th rule of the said society.' Quaere
 
 chap, xii.] Of Perjury and Subornation of Perjury. 391 
 
 The prisoner was indicted for falsely swearing that the signature to 
 a paper was not his signature. On a trial in a county court the paper 
 was produced, and the prisoner swore that he never signed it: the 
 judge directed him to write his name on a piece of paper; which he 
 did, and the judge compared it with the signature to the disputed 
 document. Wightman, J., inclined to think that the jury might 
 look at and compare the two signatures. The signing of the name 
 by the prisoner during his examination on oath formed in fact part of 
 the transaction out of which the charge arose; and the counsel for 
 the prisoner not objecting, the paper was handed to the jury. (,9) 
 
 An indictment alleged that the prisoner falsely swore in a county 
 court that the words J. S. were written by J. S. at the house of M. 
 P. in the parish of St. Mellon's in the county of G-. The proof by the 
 judge's notes was that the prisoner swore as alleged, except that he 
 did not describe M. P.'s house as in the parish of St. Mellon's ; but 
 Polfe, B., held that the allegation might well be made out by showing 
 that M. P.'s house was in that parish, (t) 
 
 Upon an indictment against Moreau for perjury alleged to have 
 been committed in an affidavit in a cause wherein Moreau was plain- 
 tiff, and Encontre defendant, by deposing that Encontre owed him 50/., 
 evidence is not admissible that the cause and all matters in dispute 
 were, after the making of the affidavit, referred by consent, and an 
 award made that Encontre owed nothing to Moreau ; because the 
 decision of the arbitrator in respect of that fact is no more than 
 a declaration of his opinion, and there is no instance of such a dec- 
 laration of opinion being received as evidence of a fact against a 
 party to be affected by proof of it in any criminal case, (u) 
 
 Where perjury is assigned upon the evidence of a witness examined 
 before magistrates on the hearing of an information, the conviction is 
 nnt admissible in evidence on the trial of the indictment for perjury, 
 as it is irrelevant to the matter in issue, (v) 
 
 Where a count alleged perjury to have been committed before 
 magistrates in examining a charge of feloniously receiving stolen 
 silks, knowing them to have been stolen, and it appeared that the 
 evidence was given upon the hearing of an information, under the 
 17 Geo. 3, c. 56, for having possession of silks suspected to have 
 been purloined or embezzled ; Paterson, J., held that the count was 
 not supported, as the evidence was given upon the specific charge con- 
 tained in the information, (to) 
 
 The jury may infer the corrupt motive of the defendant from the 
 circumstances of the case, (x) and in order to show that the defendant 
 
 whether this was not sufficient evidence inconsistent with the fact of 50/. being due : 
 
 against the prisoner when connected with as it might proceed on the absence or loss of 
 
 the 24th rule, proved to have been examined the only evidence that ever existed of the 
 
 with the transcript, of the allegations in the debt, and it rather seems that the prisoner 
 
 indictment ? See R. v. Westley, ante, p. 383. was not examined on the reference. 
 
 (s) R. v. Taylor, 6 Cox, C. C. 58. As to (v) R. v. Goodfellow, MSS. C. S. G. and 
 
 comparison of handwriting by court and jury C. & M. 569. See R. v. Dowlin, 5 T. R. 
 
 see Vol. III., Evidence. 311. 
 
 {f) R. v. Withers, 4 Cox, C. C. 17. (w) R. v. Goodfellow, supra. 
 
 {it) R. v. Moreau, 11 Q. B. 1028. The (x) R. v. Knill, 5 B. & Aid. 929, ante, 
 
 real objection in this case was that the find- p. 372. 
 ing of the arbitrator was not necessarily
 
 392 Evidence. [book II. 
 
 swore wilfully and corruptly what was not true, evidence may be given 
 of expressions of malice used by the defendant towards the person 
 against whom he gave the false evidence, (y) The evidence appears 
 to have been received in this case without objection. 
 
 The prisoner was indicted for perjury on the hearing of an infor- 
 mation against Blackburn for trespassing in pursuit of game; the 
 occupier of the land and two of his men swore that they saw Black- 
 burn on the land on a particular Sunday morning. The prisoner was 
 called by Blackburn as a witness, and swore that Blackburn lodged 
 with him, and that he never was absent from his lodgings on any 
 Sunday morning during the whole time that they lodged together, 
 which included the Sunday on which the alleged offence was com- 
 mitted. Pollock, C. B., was of opinion that the attention of the pris- 
 oner ought to have been called to the particular day on which the 
 transaction took place as to which he was asked to speak ; and that a 
 general allegation, such as had been made in this case, including all 
 Sundays between two fixed dates, was not sufficiently precise upon 
 which to found an indictment for perjury, and directed an acquittal, (z) 
 
 An indictment for perjury charged that prisoner swore (on a plaint 
 in the County Court for the price of coals obtained on credit at differ- 
 ent times, in which it was a material question whether or not the 
 prisoner had received any coals on credit from P., either on account 
 of himself or A.), ' that he had never received any coals on credit from 
 P., either on account of himself or A.' Held, that the allegation in 
 the indictment was not too general, although no specific instance was 
 averred in which the prisoner had received coals on credit from P. At 
 the trial the prisoner was asked three or four times by the advocate 
 and judge whether he did at any time, either on Iris own account or 
 that of A., have any coals on credit from P., to which the prisoner 
 always answered, ' 1 did not.' Held, that the prisoner's attention was 
 sufficiently called to the subject so as to found a charge of perjury 
 upon the answer, although no distinct transactions on credit were sug- 
 gested to him during his examination, (a) 
 
 (ij) R. v. Munton, 3 C. & P. 498, Lord day? If a man swears that he was not absent 
 
 Tenterden, C. J. 3 Stark. Evid. 860, citing from church on any Sunday in January, is 
 
 1 Hawk. c. 69, s. 2. R. v. Melling, 5 Mod. not that as precise a swearing as to each 
 
 349. R. v. Muscott, 10 Mod. 192. and every Sunday as if he were asked as to 
 
 (*) R. v. Stolady, 1 F. & F. 518. This each in succession ? An information, which 
 
 case is very unsatisfactorily reported ; no charges the defendant with killing ten deer 
 
 date is given, or anything more than is above between the 1st of July and the 10th of 
 
 stated. As the proof of the offence was on September, without showing the particular 
 
 1 a particular Sunday morning,' the pri- days on which they were killed, is good. R. 
 
 soner, if present, must have had his attention v. Chandler, 1 Ld. Raym. 581, 1 Salk. 378. 
 
 drawn to that particular date ; and, if absent, And where, on a similar information, the 
 
 still the date would have been known to evidence was that the defendant did, within 
 
 Blackburn from the summons, and, as he such a time and such a time, steal a deer, so 
 
 called the prisoner as his witness, he no that the time was left as uncertain in the 
 
 doubt had communicated the day to him, so evidence as in the information, it was held 
 
 that the ground of the decision really did sufficient. R. v. Simpson, 10 Mod. R. 248. 
 
 not exist. But supposing the decision to be C. S. G. 
 
 as reported, it is very confidently submitted (a) R. v. London, 12 Cox, C. C 50, per 
 
 that it is erroneous. Suppose a man called Bovill, C. J., 'We are all of opinion that 
 
 to prove an alibi swears that he and the this conviction was good. The first question 
 
 prisoner were in Paris during all the month is upon the form of the indictment, that is 
 
 in which the offence was committed, can it sufficient in our opinion. The second point 
 
 be the law that he is not guilty of perjury is whether the attention of the prisoner was 
 
 because he is not asked as to the particular sufficiently called to the transaction he was
 
 chap, xii.] Of Perjury and Subornation of Perjury. 393 
 
 The defendant, although perjury be assigned on his answer, affida- 
 vit, or deposition in writing, may prove that an explanation was after- 
 wards given qualifying or limiting the first answer (L) 
 
 Thus where the perjury was assigned upon an answer in chancery, 
 in which the defendant had sworn that she had received no money ; 
 the defendant proved that, upon exceptions taken to this answer for the 
 insufficiency thereof, she had put in another answer, which explained 
 the generality of the first answer, and stated that she had received no 
 money before such a day ; and it was held, upon a trial at bar, that 
 nothing could be assigned as perjury, which was explained by the 
 second answer, because the second answer clearly showed that that 
 which at first appeared to be perjury was not perjury, (c) 
 
 Where an indictment for perjury contains several assignments of 
 perjury, and no evidence is adduced upon one of the assignments, the 
 defendant is not entitled to give any evidence to show that the matter, 
 charged by such assignment to be false, was in fact true, (d) 
 
 The crime of perjury is complete at the time when an affidavit is 
 sworn ; it is no defence, therefore, that the affidavit cannot, through 
 certain omissions in the jurat, be received in the Court for which it 
 is sworn. Upon an indictment for perjury, in an affidavit relating to 
 the service of a petition upon a bankrupt, it appeared that the affida- 
 vit was signed with the mark of the defendant, and the jurat did not 
 state either where it was sworn, or that the affidavit was read over 
 to the party, and it was proved by a clerk in the Master's office in 
 Southampton Buildings that in cases where the party swearing the 
 affidavit cannot write, the jurat ought, after stating the place where 
 it was sworn, to state that the witness to the mark of the deponent 
 had been first duly sworn, that he had truly, distinctly, and audibly 
 read over the affidavit to the deponent, and saw the mark affixed ; 
 and that no affidavit would be received which did not contain this 
 form of jurat when the party could not write. Littledale, J., 'The 
 omission of the form directed by this and other Courts to be used 
 in the jurat of affidavits may be an objection to their being received 
 in the Court, whose rules and regulations the party has neglected 
 to comply with; but I am of opinion that the perjury is complete 
 at the time the affidavit is sworn, and although it cannot be used 
 in the Court for which it is prepared, that nevertheless perjury may 
 be assigned upon it,' (e) So where an affidavit when sworn had been 
 marked by the judge's clerk with his initials, but through mistake 
 not then presented to the judge for his signature, but some days 
 afterwards it was signed by the judge ; Alderson, B., in the presence 
 
 being questioned about, and we are all of (b) 3 Stark. Evid. 860. 
 
 opinion it was amply called to it, even it' the (c) E. v. Carr, 1 Sid. 418. 2 Kebl. 576. 
 
 second point had been reserved for us ; ' et per 3 Stark. Evid. 860. The reporter adds, ' at 
 
 Willes, J., ' We do not intend to overrule which unexpected evidence and resolution 
 
 what Pollock, C. B., said, "that the atten- the counsel for the prosecution were 
 
 tion of a witness ought to be called to the surprised.' 
 
 point upon which his answer is supposed to (d) R. v. Hemp, 5 C. & P. 468. 
 
 be erroneous, before a charge for perjury can (c) R. v. Hailey, E. & M. N. P. C. 94. 
 
 be founded upon it." Mr. Greaves in his 1 C. & P. 258. See R. v. Crossley, ante, 
 
 last edition of " Russell on Crimes," makes p. 340, and R. v. Phillpotts, ante, p. 313, 
 
 some observations on E. v. Stolady, which that it is perjury as soon as the evidence is 
 
 are in accordance with the judgment of the given, whatever may afterwards occur. 
 
 Lord Chief Justice.'
 
 394 Evidence. [book ii. 
 
 of the other Barons of the Exchequer, expressed a clear opinion that 
 perjury might be assigned upon the affidavit, although the judge's 
 signature was omitted. (/) 
 
 Upon an indictment tor perjury, it appeared that the defendant had 
 filed a bill in chancery for an injunction, and had made the affidavit, on 
 which the perjury was assigned, in support of the allegations in that 
 bill. The indictment averred the bill to have been filed, and the affi- 
 davit exhibited in support of it; and it stated the matters assigned 
 as perjury to be material to the questions arising on the bill ; but it 
 did nnt contain any statement that a motion had been made for an 
 injunction, and it did not appear by the evidence that any such motion 
 had in fact been made. It was submitted that the defendant was en- 
 titled to an acquittal. By the practice of the Court of Chancery, an 
 injunction could not be obtained, except for want of an answer, or on 
 the insufficiency of the answ T er, or on evidence disproving the answer, 
 in none of which cases is the affidavit of the plaintiff' admissible ; or 
 else ex parte before the time allowed to the defendant for answering 
 has elapsed. In the last case, and in that only, could the plaintiffs 
 affidavit be used. The averment, therefore, that the perjury w T as as- 
 signed on the matter material to the bill w T as not true ; it could only 
 be material to an application of a peculiar nature, and it did not ap- 
 pear, and was not alleged, that such an application was ever made. It 
 was answered that the objection, if tenable at all, amounted to this, 
 that perjury could not be assigned upon an affidavit which had not 
 been used. Lord Tenterden, C. J., ' I do not think the averment or 
 proof, the absence of which is objected to, can be necessary. The 
 statements in the affidavit are material to the matters contained in the 
 bill, which is for an injunction ; and it may well have been filed in 
 anticipation of a contemplated motion for an injunction, on which it 
 might have been used. Can it make any difference that it afterwards 
 turns out that the motion is not made ? The crime, if any, is the 
 same, morally, in each case ; and I certainly shall not, where the ob- 
 jection is open hereafter, hold it necessary to give proof of a fact which 
 does not vary the conduct of the party in taking the oath in ques- 
 tion.' (jj) And it has been since held that an affidavit sworn for the 
 purpose of being used in a cause, but which is neither used nor filed, 
 is nevertheless the subject of perjury, (h) 
 
 "Where an indictment for perjury alleged that the defendant pro- 
 duced before a Master in Chancery an affidavit, ' entitled, in the said 
 Court of Chancery, and in the said suit therein at the suit of the said 
 E. J. C, and also in the said suit therein at the suit of the said Commis- 
 sioner of Charitable Donations and Bequests in Ireland,' and the 
 affidavit, when produced, appeared to be entitled 'between the Com- 
 missioner of Charitable Donations and Bequests in Ireland, against 
 J. E. D., &c. (naming the other defendants), and between E. J. C. and 
 
 (/") Bill v. Bament, S M. & W. 317. (h) Hammond v. Chittv. Q. B., E. I 
 
 (;/) R. v. Whit.-, M. & M. 271. The 1816, MSS. C. S. G. 1 
 
 defendant was acquitted. 
 
 American Note. 
 
 1 Andthe same has been held in America. Munson, 31 Wis. 579 : 17 Am. R. 461; 
 S. v. Whittemore, 50 X. H. 245 ; Miller v. Mairet v. Marriner, 34 Wis. 5S2.
 
 chap, xij.] Of Perjury und Subornation of Perjury. 395 
 
 J. E. D., the Commissioners of Charitable Donations and Bequests in 
 Ireland, and others' It was objected that this affidavit was not one 
 on which perjury could be assigned, as there was no such suit as that 
 in which the Commissioner of Charitable Bequests were plaintiffs ; and 
 the affidavit was improperly entitled, as the names of all the defend- 
 ants were not stated, and therefore the affidavit was not admissible 
 in the Court of Chancery, Lord Denman, C. J., ' The courts are quite 
 right in not receiving affidavits which are not properly entitled ; but 
 I do not think the question whether there be perjury or not depends 
 on the rule as to entitling being strictly complied with.' (i) 
 
 Where perjury was charged to have been committed in an affidavit 
 of service of notice of an application for leave to issue execution 
 against a shareholder in a joint stock company, and the affidavit was 
 produced, but the notice was not annexed to it ; Cockburn, C. J., held 
 that the affidavit was inadmissible. (/) 
 
 On an indictment for perjury alleged to have been committed on 
 the trial of A. Poole, for an indecent assault, it appeared that the 
 prisoner had sworn that Poole had assaulted her at a certain time and 
 place, but on cross-examination she had admitted that certain liberties 
 had been taken without resistance ; whereon the judge directed an 
 acquittal. Poole and others were called to prove that no such assault 
 could have been committed at the time alleged ; and it was held that 
 the prisoner was entitled to prove what her conduct was immediately 
 after the alleged assault ; that she had made immediate complaint ; 
 and that all the evidence which was admissible on the trial of the 
 assault was admissible for the purpose of showing that the prisoner 
 was not guilty, (k) 
 
 If any one distinct assignment of perjury be proved, the defendant 
 ought to be convicted. (I) 
 
 In a case of a prosecution against T. Reilly for suborning one 
 Macdaniel to commit perjury, it was contended on the part of the 
 crown that the bare production of the record of Macdaniel's convic- 
 tion was of itself sufficient evidence that he had, in fact, taken the 
 false oath as alleged in the indictment. But it was insisted, for the 
 prisoner, that the record was not of itself sufficient evidence of the fact ; 
 that the jury had a right to be satisfied that such conviction was right ; 
 that Eeilly had a right to controvert the guilt of Macdaniel ; and that 
 the evidence given on Macdaniel's trial ought to be submitted to the 
 consideration of the present jury ; and the Recorder obliged the coun- 
 sel for the crown to go through the whole case in the same manner as 
 if the jury had been charged to try Macdaniel. (m) 
 
 (i) E. v. Christian, C. & M. 388. on a particular occasion, and denied having 
 
 (j) R. v. Hudson, 1 F. & F. 56. had a conversation with certain persons 
 
 (k) R. v. Harrison, 9 Cox, C. C. 503. there, and the indictment contained many 
 
 (/) R. v. Rhodes, 2 Lord Raym. 886, distinct assignments on the going to the 
 
 887. 3 Stark. Evid. 860. And see Com- house, and the conversation, upon all of 
 
 pagnon v. Martin, 2 Black. Rep. 790. R. v. which evidence was given ; and Patteson, J., 
 
 Virrier, 12 Ad. & E. 317. R. v. Gardiner, directed the jury simply to consider whether 
 
 ante, p. 349. In R. v. Nicholls, Gloucester the defendant had been to the house, and if 
 
 Sum. Ass. 1838, perjury was alleged to have they were satisfied that he had, to convict 
 
 been committed by the defendant in evi- him, which they did. MSS. C. S. G. 
 
 dence given on a trial for larceny, in which (m) Reilly's case, 1 Leach, 454. See 
 
 he denied having been at a particular house ante, p. 139.
 
 396 Punishment. [book ii. 
 
 The first count assigned perjury on an affidavit of the defendant, 
 which alleged that the defendant did not retain or employ W. U. to 
 act as attorney for him and J. I., or for either of them, in and about 
 the business mentioned in the said W. U.'s bill of costs ; and that he, 
 the defendant, never retained or employed the said W. U. to act as 
 attorney or agent for him in any cause or manner whatever. The 
 second count assigned perjury on the statement in the affidavit as fol- 
 lows : ' that he the said defendant did not retain or employ (meaning 
 that he the defendant did not alone, or jointly with the said J. I., retain 
 or employ) W. U. to act as attorney for him and J. I.' The third 
 count was the same as the first, and the fourth as the second. The 
 plea was, that the defendant was not guilty of the premises in the 
 indictment specified. The venire was ' to recognize whether the de- 
 fendant be guilty of the perjury and misdemeanor aforesaid, or not 
 guilty.' The verdict was that the defendant ' is guilty of the perjury 
 and misdemeanor aforesaid,' and the judgment that the defendant ' lie 
 imprisoned and kept to hard labour for ten calendar months.' It was 
 urged that the venire, the verdict and judgment, were uncertain for 
 not showing to which of the counts they referred. That they were in 
 the singular number, speaking of ' the perjury and misdemeanor afore- 
 said,' and that this could only mean one perjury and misdemeanor ; 
 and that as four were alleged in the indictment, it was uncertain 
 which of them the jury was summoned to try, and of which of them 
 the defendant was found guilty ; but the Courts of Queen's Bench and 
 Exchequer Chamber held that ' misdemeanor ' was nomen collcctivum, 
 and meant ' the misconduct aforesaid.' The consequence was that the 
 venire applied to all the counts of the indictment, and that the defend- 
 ant had been found guilty by the verdict on all the counts, (n) 
 
 Where on an indictment for perjury containing several counts the 
 judgment was that the prisoner for the offence charged upon him in 
 and by each and every count be imprisoned for the space of eight 
 calendar months now next ensuing ; it was held by the Court of 
 Exchequer Chamber that the judgment was good, on the ground that 
 it meant that the prisoner was to be imprisoned for the same period 
 of eight months for each offence, (o) 
 
 Punishment. — The punishment of perjury and subornation of per- 
 jury, at common law, has been various, being anciently death ; after- 
 wards banishment, or cutting out the tongue ; then forfeiture of 
 goods, (jp) At the present time it is fine and imprisonment, at the 
 discretion of the court, (q) to which, as we have already seen, the 
 2 Geo. 2, c. 25, (r) superadds a power for the Court to order the 
 
 (n) Ryalls v. R., 11 Q. B. 781. R. v. years; and be now remanded to the custody 
 Powell, 2 B. & Ad. 75, was recognized as of the marshal, to be by him kept in safe 
 good law by both courts. custody, in execution of the judgment afore- 
 (o) King v. R., 14 Q. B. 31. said, and until he shall be transported as 
 ( // ) 4 Black. Com. 138. aforesaid.' The 1 Vict. c. 23, abolishes the 
 (q) 4 Black. Com. 138. R. v. Nueys and punishment of the pillory in all cases. ' pro- 
 Craley, 1 Black. R. 416. R. v. Lookup, 3 vided that nothing herein contained shall 
 Burr. 1901. In this last case the form of the extend, or be construed to extend, in any 
 sentence was that the defendant ' should be manner to change, alter, or affect any pun- 
 set in and upon the pillory at C. cross, for ishment whatsoever, which may now be by 
 an hour between the hours of twelve and law inflicted in respect of any offence except 
 two, and that he should afterwards be trans- only the punishment of pillory.' 
 ported to some of his Majesty's colonies or (r) Ante, p. 322. The statute does not, 
 plantations in America, for the space of seven however, impose on the Court the necessity
 
 chap, xij.] Of Perjury and Subornation of Perjury. 397 
 
 offender to be sent to the house of correction for a term not exceeding 
 seven years, or to be transported for the same period ; (s) and makes it 
 felony, without benefit of clergy, to return or escape within the time. 
 If the prosecution proceeds upon the 5 Eliz. c. 9, that statute, as we 
 have seen, (t) inflicts the penalty of perpetual infamy, and a fine of 
 40/. on the suborner; and, in default of payment, imprisonment for 
 six months, and to stand with both ears nailed to the pillory ; (u) 
 and punishes perjury itself with six months imprisonment, perpetual 
 infamy, and a fine of 20/., or to have both ears nailed to the pillory. 
 
 The 3 Geo. 4, c. 114, enacts, that 'whenever any person shall be 
 convicted of any of the offences hereinafter specified and set forth, 
 that is to say (inter alia), of wilful and corrupt perjury, or of suborna- 
 tion of perjury, it shall and may be lawful for the Court before which 
 any such offender shall be convicted, or which by law is authorized to 
 pass sentence upon any such offender, to award and order (if such court 
 shall think fit) sentence of imprisonment with hard labour, for any 
 term not exceeding the term for which such court may now imprison 
 for such offences, either in addition to or in lieu of any other punish- 
 ment which may be inflicted on any such offenders by any law in force 
 before the passing of this Act ; and every such offender shall thereupon 
 suffer such sentence, in such place, and for such time as aforesaid, as 
 such court shall think fit to direct.' See ante, p. 81. 
 
 Upon a conviction for perjury at the Chester Assizes, after the 
 entry of the verdict the record proceeded, ' it is therefore ordered that 
 the said L. K. be transported to the coast of New South Wales, or 
 some one or other of the islands adjacent, for and during the term of 
 seven years ; ' and upon a writ of error the following errors were relied 
 upon : that the judgment was erroneous in form, being, ' it is ordered;' 
 whereas it should have been ' it is considered ;' that it was bad in sub- 
 stance, being a judgment of transportation only, whereas the 2 Geo. 2, 
 c. 25, s. 2, enacts that judgment of transportation may be pronounced, 
 besides the punishment that might before be inflicted ; that the place, 
 to which the prisoner was to be transported ought not to have been 
 fixed by the Court, the power of appointing that being given to the 
 King in council by the 56 Geo. 3, c. 27 ; and that at all events the 
 appointment of the place was bad, being to one or other of various 
 places, and, therefore, uncertain. And the Court of King's Bench held 
 that by the 2 Geo. 2, c. 25, s. 2, two things were required to be done 
 by the Court before which the party was tried; an order for transpor- 
 tation was to be made, and thereupon judgment was to be given ; and 
 here the Court had made an order not followed up by a judgment. 
 Inasmuch, therefore, as no judgment had been entered in the Court 
 below, and the Court of King's Bench had no power to supply the 
 deficiency, as the punishment was discretionary, that Court awarded a 
 procedendo, commanding the Court below to proceed to give judgment 
 on the conviction, (v) 
 
 The Court may also adjudge the defendant to give surety to keep the 
 
 of awarding any punishment previous to that exceeding seven and not less than three 
 
 of penal servitude so as to make the penal years. 
 
 servitude an additional punishment. Castro (t) Ante, p. 320. 
 
 v. R., 6 Ap. Cas. 229. (u) See note (q), supra. 
 
 (s) Penal servitude for any term not (r) R. v. Kenworthy, 1 B. & C. 711.
 
 398 Making False Answers, Etc. [book ii. 
 
 peace and be of good behaviour for a reasonable time, to be computed 
 from and after the expiration of the term of his imprisonment, him- 
 self in a sum named in such judgment, with two sufficient sureties, 
 each in a sum therein also mentioned, and may adjudge the defendant 
 td l>u further imprisoned until such security be given; and such sen- 
 tence does imt amount to perpetual imprisonment, as in default of 
 sureties being given the defendant would be entitled to be dis- 
 charged at the expiration of the term during which the sureties were 
 required, (w) 
 
 A consequence of a conviction for perjury, though it formed no 
 part of the judgment, was, that the offender was incapacitated from 
 giving evidence in a court of justice, (x) But by the 6 & 7 Vict. c. 80, 
 s, 1, a person is competent as a witness though he has been convicted 
 of a crime or offence, (y) 
 
 The following cases may be introduced in this place. 
 
 Making a false schedule of debts. — An indictment for perjury, 
 alleged to have been committed in the insolvent Debtors Court, stated 
 that the defendant gave in his schedule on oath that the same con- 
 tained a true and correct account of all his debts, credits, &c, and then 
 went on to state that certain persons whose names were set out, were 
 debtors to the defendant at the time of giving in his schedule, and that 
 they were omitted in the schedule. It was objected that no indict- 
 ment for perjury would lie on such omissions ; that the offence of 
 wilfully making such omissions was made punishable as a misdemeanor 
 by the 7 Geo. 4, c. 57, s. 70, and the offence of perjury created by 
 sec. 71 only applied to positive affirmations contained in the schedule. 
 Lord Tenterden, C. J., ' I think the legislature contemplated the par- 
 ticular case of omissions, and provided for them in the seventieth sec- 
 tion, the debts omitted being comprehended under the terms "effects 
 or property " there used. The Act then goes on in the seventy-first 
 section to make other falsehoods in the oath of the party punishable 
 as perjury. I therefore think the defendant must be acquitted.' (z) 
 
 Making false answers to questions at elections. ■ — Upon an indict- 
 ment against the defendant under the 2 Will. 4, c. 45, s. 58, (a) for 
 giving a false answer to the question whether he had the same quali- 
 fication to vote as that for which he was registered, it appeared that 
 the defendant had occupied a house at the time of the registration, for 
 which he was on the register as a voter, but he had left it before the 
 election, and the landlord's agent had, before the election, given the 
 key of the house to another person, who had put horses into the stable 
 and beer into the cellar, but the rent of such person did not com- 
 mence till after the election ; it was held that the defendant must be 
 acquitted, as there was not evidence as to the determination of the 
 defendant's tenancy, (b) 
 
 {w) R. v. Dunn, 12 Q. B. 1026, decided Black. Com. 138. 2 Hawk. P. C. c. 46, 
 
 on the authority of R. v. Hart, 30 How. St. s. 101. 
 
 Tr. 1131, 1194, and 1344, where the judges, (y) See this Act, Vol. III., Evidence. 
 
 in answer to a question from the House of (2) R. v. Mudie, 1 M. & Rob. 128. S. C. 
 
 Lords, delivered their unanimous opinion as R. v. Moody, 5 C. & P. 23. 
 
 that in all cases of misdemeanor the Court (a) This enactment is now repealed, see 
 
 might give sentence in that form. 35 & 36 Vict. c. 33, sched. 
 
 (x) Gilb. Ev. 126. Bull. N. P. 291. 4 (b) R. v. Harris, 7 C. & P. 253, Lord 
 
 Denrnan, C. J.
 
 CHAP. XII.] Of Perjury and Subornation of Perjury. 399 
 
 Upon an indictment against the defendant under the 2 Will. 4, c. 45, 
 s. 58, (c) for falsely answering that he had the same qualification for 
 which his name was originally inserted in the register of voters, it ap- 
 peared that the defendant at the time of the registration was occuj ly- 
 ing a house at Turnham Green, as tenant of Mr. Kay, at the rent of 
 60/. per annum, but he left that house at Lady Day following, and in 
 April commenced the occupation of another house at Turnham Green, 
 as tenant to Mr. L., at a rent of 50/. and upwards per annum, and he 
 continued in the occupation of this house from April till the time of 
 the election. The defendant had been told that he had no right to 
 vote, before so doing, but he said that he believed he had a right to 
 vote, and that he had been so informed by the committee of two of 
 the candidates, and that their opinion was sufficient to warrant him 
 in voting. It was held that the nature of the qualification being the 
 same, did not give the party a right to vote, merely because it fell 
 within the general terms of the description which he had given to the 
 revising barrister. The identity of the qualification must continue ; 
 and if a voter ceased to occupy the premises in respect of which he 
 was registered, he thereby ceased to have a right to vote ; and it was 
 no answer to say that, although he had ceased to occupy those prem- 
 ises, he had entered upon the occupation of other premises of equal 
 value. It had been urged that if the statement of the defendant was 
 untrue, he made it under the advice of a committee ; but that made 
 very little difference, for if a party made a statement which he knew 
 to be untrue, the opinion of an election committee (which generally 
 had a pretty strong bias one way or the other) did not alter the char- 
 acter of the offence. But still the term ' same qualification ' was un- 
 doubtedly an equivocal expression, and almost necessarily implied 
 something of opinion as to a matter of law, and the jury ought not to 
 convict a person of a misdemeanor, who possessed property of equal 
 value to that which he held at the time of the registration, if he had 
 acted bond fide, and had been guided in his conduct in a matter of law 
 by persons who were conversant with the law, and who had told him 
 that he possessed the same qualification for which his name was 
 originally inserted in the register of voters, (d) 
 
 The word ' wilfully ' in an indictment on the 2 & 3 Will. 4, c. 45, 
 s. 58 (now repealed), for giving a false answer at the poll, must be 
 construed in the same way, and supported by the same sort of evi- 
 dence, as in an indictment for perjury. To be untrue is not enough ; 
 for to be wilful it must have been false to the knowledge of the party 
 at the time, (j) An indictment under the same section against a 
 
 (c) The section is now repealed. As to to the case where a voter is registered for 
 the meaning in it of the phrase 'the same 'land,' described as in his own occupation, 
 qualification,' see R. v. Bowler, C. & M. 559 ; or for 'freehold houses,' in some specified 
 R. v. Ellis, 0. & M. 564. street, and after the registration he sells part 
 
 (d) R. v. Dodsworth, 8 C. & P. 218. 2 of the land which was in his own occupation 
 Moo. & Rob. 72, Lord Dennran, C. J. In at the time of the registration, or some of 
 R. v. Irving, 2 M. & Rob. 75, note (a), the the houses of which he then possessed the 
 same points arose, and Bosanquet, J., was freehold ; in each case, however, retaining 
 decidedly of opinion that in point of law the enough in point of value to confer a qualifi- 
 qualification was not the same, but said that cation, and intimate a doubt whether such 
 if the answer was given by the prisoner a party could truly answer the question in 
 under a bond fide belief that he still retained the affirmative. C. S. G. 
 
 his qualification, he should be acquitted. (;') R. v. Ellis, supra. 
 
 In the same note the learned reporters advert
 
 400 Making Fake Answers, Etc. [book ii. 
 
 voter for giving a false answer at the poll, which stated that at a cer- 
 tain election for a member of Parliament for the borough of Stoke-upon- 
 Trent, the defendant appeared as a voter, and tendered his vote as 
 such, and that he gave a false answer that he had the same qualifica- 
 tion for which he was put on the register, whereas in truth he had 
 not, was held to be bad, because it stated all the matters by way of 
 recital, and neither stated the writ nor the precept for holding the 
 election, nor that the defendant's name was on the register. (/,) 
 Win -re on the trial of an indictment under the same section, c. 45, 
 s. 58, against the defendant fur giving a false answer to the question, 
 1 Have you the same qualification for which your name was originally 
 inserted in the register of voters now in force for the city of Bris- 
 tol ? ' the sheriff's deputy stated that on the defendant tendering his 
 vote he had asked him the question as set out in the indictment, 
 but did not, at the end of the question, read from the register the 
 line in which his name and qualification were inserted, ' Lucy Wil- 
 liam, House, Lodge Street.' Wightman, J., held that the defendant 
 must be acquitted, as the particular qualification ought to have been 
 read over. (/) 
 
 The first four counts of an indictment upon 5 & 6 Will. 4, c. 76, 
 s. 34 (now repealed), stated that the defendant, upon delivering in a 
 voting paper, in the name of a burgess entitled to vote at the election, 
 was asked by the presiding officer the three questions in the terms of 
 the Act, and then alleged, ' to which questions (each of the two first) 
 the defendant then and there falsely and fraudulently answered, " I 
 am ; '" and Williams, J., after consulting Patteson, J., held that these 
 four counts were bad for omitting the word 'wilfully' 'Wilfully to 
 make a false answer to the question ' proposed was the definition of 
 the offence by the legislature itself, and it was a safe and certain rule 
 that the words of the statute must be pursued, (m) The prisoner was 
 indicted for falsely answering a question at a municipal election under 
 the same section. The prisoner's father, William Goodman, had been 
 a burgess in St. Alban's and those names remained on the overseer's 
 lists ; but he had been absent from home for a considerable time ; and 
 the prisoner, whose name was also William, resided in the same house, 
 and paid the parish rates, &c. At a municipal election the prisoner 
 offered to vote, and being asked, ' Are you the person whose name 
 appears as " William Goodman " on the burgess roll now in force,' 
 answered ' Yes.' There was only one William Goodman on the roll. 
 Wightman, J., held that there was no ease against the prisoner, (n) 
 
 Upon an indictment against the defendant for a misdemeanor, in 
 falsely swearing that he bona fide had such an estate in law or equity 
 of the annual value of 300/., above reprises, as qualified him to be a 
 member of Parliament for a borough ; a surveyor stated that the fair 
 annual value of the property was about 200/. a year, but another wit- 
 ness stated that it was badly let, and believed it was worth more than 
 
 [k) R. v. Bowler, C. & M. 559, per Patte- [I) R. v. Lucy, C. & M. 510. 
 
 son, J. The defendant was acquitted in this (m) R. v. Bent, 1 Den. C. C. R. 157, 2 C. 
 
 case. In R. v. Ellis, C. & M. 564, the & K. 179. 
 
 indictment was in a similar form, the defend- In) R. v. Goodman, 1 F. & F. 502. 
 
 ant convicted, and the judgment arrested in 
 the Queen's Bench, no cause being shown.
 
 chap, xii.] Of Perjury and Subornation of Perjury. 401 
 
 300/. a year, and that he told the defendant so, and that he did not 
 think that the defendant had any reason to helieve that the qualifica- 
 tion, in point of value, was not sufficient. It was held that the jury 
 must be satisfied, beyond all doubt, that the property was not of the 
 value of 300/. a year, and that, at the time the defendant made the 
 statement, he knew that it was not of that value, (o) 
 
 Administering an oath contrary to the 5 & 6 Will. 4, c. 62, s. 13. — 
 The first count of an indictment upon the 5 & 6 Will. 4, c. 62, s. 13, 
 charged that the defendant, being a justice of the peace, did unlaw- 
 fully administer to and receive from J. Huxtable a certain voluntary 
 oath touching certain matters and things whereof the defendant had 
 not jurisdiction or cognizance by any statute. The second and third 
 counts slightly varied, and the fourth count negatived the proviso 
 in sec. 13. There were other counts charging the defendant with 
 administering oaths to two other persons. The defendant had made a 
 complaint to the bishop against two clergymen, who officiated in his 
 parish, that one had played at thimble-rig, and that both had neglected 
 the duties of the parish. The bishop intimated that, before he could 
 call on the clergymen to answer the complaint, the defendant must 
 either bring before him the persons who proved the charges, or obtain 
 statements in writing of the facts. The defendant obtained statements 
 from the three persons mentioned in the indictment, and swore them 
 before himself, as a justice of the peace, to the truth of the statements. 
 The bishop had before appointed a day for hearing the charges, and 
 had summoned the clergymen to attend ; but on finding that the 
 depositions had been thus sworn, he declined to look at them ; he 
 went, however, into the charges on other evidence. It appeared that 
 the defendant was ignorant of the statute rendering the administering 
 voluntary oaths illegal. It was contended that the enacting part of 
 the statute must be construed with reference to the preamble ; that 
 the enacting clause, which prohibits ' any justice of the peace, or other 
 person,' from administering oaths, other than in matters over which 
 jurisdiction was given by statute, if taken by itself, would render un- 
 lawful the taking of many oaths which could be administered by the 
 common law, that the enactment construed together with the proviso 
 was still too stringent, and that the enactment and proviso must be 
 governed by the preamble. Coleridge, J., in summing up, said, he was 
 of opinion that the enacting part of the statute was not governed by 
 the preamble ; that he considered the enacting part of the section and 
 the proviso preserved to justices of the peace all the jurisdiction they 
 had, as well at the common law as by statute, to administer oaths ; 
 and that the inquiry before the bishop was clearly a matter in respect 
 of which the defendant had no jurisdiction, either at common law or 
 by statute. He directed the jury, that, if they were satisfied the de- 
 fendant did administer the oaths, they should find him guilty. The 
 jury found the defendant ' guilty of inadvertently administering an 
 oath or oaths;' and Coleridge, J., held that that was a verdict of 
 guilty, (p) But the judgment was afterwards arrested upon the ground 
 
 (o) R. v. De Beauvoir, 7 C. & P. 17, necessary, see 21 & 22 Vict. c. 26 ; 37 & 38 
 Lord Denman, C. J. A property qualifies- Vict. c. 66. 
 
 tion for a member of Parliament is not now ( p) R. v. Nott, C. & M. 288. See the 
 
 section, ante, p. 327. 
 
 vol. i. — 26
 
 402 Declarations before Justices. [book ii. 
 
 that the indictment did not in any count show what the nature of 
 the oath was. There ought to have been a distinct allegation of the 
 subject-matter of the oath, showing affirmatively that it was out of the 
 jurisdiction of the magistrate. The question was matter of law for 
 the Court, and though it was not necessary to set out the whole of 
 the oath, still the facts should have been so stated as to enable the 
 Court to form its opinion upon the question whether the oath was 
 within the jurisdiction of the magistrate or not. (q) 
 
 False declarations. — Where a prisoner was indicted for making a 
 false declaration before a justice in pursuance of the rules of a benefit 
 society, which required a loss by fire in certain cases to be verified by 
 such a declaration ; it was objected that the 5 & 6 Will. 4, c. 62, 
 s. 18, did not extend to any declarations except those mentioned in 
 the preamble of that section ; but Erskine, J., held that the section 
 extended to all declarations generally, (r) 
 
 The prisoner was indicted for swearing a false declaration under the 
 5 & 6 Will. 4, c. 62, s. 18, that he had done no act to encumber certain 
 lands, and that he was in possession of those lands, and in the receipt 
 of the rents and profits thereof. The declaration was duly sworn and 
 made in support of an application to a building society in 1861, for an 
 advance of 150Z. The mortgage deed of 1861 to the building society 
 was produced, but the attesting witness was not called to prove it. 
 The original conveyance of the property to the prisoner was put in. 
 It was objected that the declaration was confirmatory of the mortgage 
 deed, and as that was not proved, it was not shown that the matter 
 sworn was material. It was answered that the declaration was made 
 to confirm the original conveyance, and not the mortgage, which was 
 executed after the declaration. Byles, J., ' I am of opinion that the 
 objection is fatal. The preamble of the 5 & 6 Will. 4, c. 62, s. 18, (s) 
 must be read with the enacting part ; and as the deed, which rendered 
 the declaration necessary, is not proved, this indictment cannot be 
 sustained.' (t) 
 
 The prisoner was indicted under the 5 & 6 Will. 4, c. 62, s. 12, (w) 
 for making a false declaration before a justice for the borough of 
 Liverpool that she had lost the pawn ticket of certain goods pledged 
 by her. The clerk to the justice could only speak to the handwriting 
 of the justice on the declaration, and, from the great number of these 
 declarations, he could not remember when or where it was made. It 
 was contended that there was no evidence that the declaration had 
 been made before the justice acting as such or even within the borough ; 
 and Gurney, B., held that the objection was good. The justice might 
 at all events have proved that he had never taken such a declaration 
 out of the borough. (#) 
 
 (?) R. v. Nott, 4 Q. B. 768. In the But no opinion was pronounced upon this 
 
 argument it was contended that the defend- point. 
 
 ant on the finding of the jury had been (r) R. v. Boynes, 1 C. & K. 65. See this 
 
 guilty of no offence, and Lord Denman, case, ante, p. 390. 
 C. J., said, ' If the statute in terms create (s) Ante, p. 328. 
 
 an offence, all persons are hound to know it. (/) R. v. Cox, 9 Cox, C. C. 301. 
 
 But if a statute enacts something, without («) Ante, p. 326. 
 
 in terms making it an offence, and you would (v) R. v. Morgan, 1 Cox, C. C. 109. No 
 
 convict a person of misdemeanor in having case was cited, and this decision requires 
 
 disobeyed such an enactment, are you not reconsideration. See the next case, and the 
 
 bound to show that the disobedience was note to it. 
 wilful, and in the nature of a contempt ? '
 
 chap, xii.] Of Perjury and Subornation of Perjury. 403 
 
 The prisoner was indicted for having at Stroud, in the county of 
 Gloucester, made a false declaration before E. G. Hallewell, a justice 
 of the peace, that he had lost a pawnbroker's ticket. It was opened 
 that the prisoner told the pawnbroker that he had lost the ticket, and 
 the pawnbroker told him he must make a declaration of the loss before 
 a magistrate, and for that purpose handed the prisoner a copy of the 
 ticket and a form, to be filled up according to the Act ; the prisoner 
 paid for the form, saying he would go to a magistrate ; he returned 
 the same day with the form properly filled up, and with his name 
 and that of Mr. Hallewell attached. Mr. Hallewell was not able to 
 recollect the fact of the declaration having been made, and therefore 
 was not present ; but the pawnbroker identified the declaration. But 
 there was only one witness to prove that the prisoner had not lost the 
 duplicate. Piatt, B., 'As regards the proof of the declaration having 
 been made by the prisoner, I think there may be sufficient evidence 
 to support the indictment, if you can bring home to him a knowledge 
 of its contents ; but I am of opinion that the falsity of that declara- 
 tion must be proved by the oaths of two witnesses as in a case of 
 perjury, otherwise there would be but oath against oath.' Qiv) 
 
 (w) R. v. Browning, 3 Cox, C. C. 437. declaration in the manner and with the for- 
 
 The ruling of the learned Baron was right malities described in it. In R. v. Spencer, 
 
 on both points ; though an idle doubt has 1 C. & P. 260, ante, p. 381, Lord Tenterden, 
 
 been raised on the first point. If a man in C. J., said, ' The courts always give credence 
 
 writing admitted that he had made a decla- to the signature of the magistrate or com- 
 
 ration before a justice under the Act, no missioner ; and if his signature to the jurat 
 
 doubt can exist that such writing would be is proved, that is sufficient evidence that the 
 
 sufficient evidence against him ; and in this party was duly sworn, and if the place at 
 
 case the prisoner produced a declaration in which it was sworn is mentioned in the jurat, 
 
 the form under the Act, signed by himself that is sufficient evidence that it was sworn 
 
 and the justice, and dealt with it, and ob- at that place.' And see R. v. James, and 
 
 tained the goods by it, as a valid declaration; Brickell v. Hulse, ante, p. 388, and R. v. 
 
 and it is perfectly clear that this was abun- Westley, Bell, C. C. 193, ante, p. 383. 
 dant evidence that he had made that
 
 CHAPTER THE THIRTEENTH. 
 
 OF ADMINISTERING OR TAKING UNLAWFUL OATHS. 
 
 The 37 Geo. 3, c. 123, s. 1, recites that wicked and evil disposed 
 persons had attempted to seduce his Majesty's forces and subjects from 
 their duty and allegiance, and to incite them to acts of mutiny and 
 sedition ; and had endeavoured to give effect to their wicked and 
 traitorous proceedings, by imposing upon the persons whom they 
 had attempted to seduce the pretended obligation of oaths unlawfully 
 administered. From this preamble it appears as if the statute were 
 mainly directed against combinations for purposes of mutiny and 
 sedition : but in the enacting part, after dealing with offences of that 
 description, it goes on in much more extensive terms, and embraces 
 other more general objects. It enacts, ' that any person or persons 
 who shall in any manner or form whatsoever administer, or cause to 
 be administered, or be aiding or assisting at, or present at, and con- 
 senting to, the administering or taking of any oath or engagement, 
 purporting or intending to bind the person taking the same to engage 
 in any mutinous or seditious purpose ; or to disturb the public peace ; 
 or to be of any association, society, or confederacy, formed for any 
 such purpose ; or to obey the orders or commands of any committee 
 or body of men not lawfully constituted, or of any leader or com- 
 mander, or other person not having authority by law for that purpose ; 
 or not to inform or give evidence against any associate, confederate, or 
 other person ; or not to reveal or discover any unlawful combination 
 or confederacy ; or not to reveal or discover any illegal act done or to 
 be done ; or not to reveal or discover any illegal oath or engagement 
 which may have been administered or tendered to or taken by such 
 person or persons, or to or by any other person or persons, or the im- 
 port of any such oath or engagement ;* shall on conviction be adjudged 
 guilty of felony, and be transported (a) for any term not exceeding 
 seven (b) years ; ' and every person who shall take any such oath or 
 engagement, not being compelled thereto, shall, on conviction, be ad- 
 judged guilty of felony, and may be transported (a) for any term not 
 exceeding seven (b) years.' 
 
 In one case a question was made, whether the unlawful adminis- 
 tering of an oath by an associated body of men to a person, purporting 
 to bind him not to reveal or discover an unlawful combination or 
 conspiracy of persons, nor any illegal act done by them, (c) was within 
 this statute ; the object of the association being a conspiracy to raise 
 
 [a) Penal servitude by the 20 & 21 Vict. (c) The oath was, ' You shall be true to 
 c. 3, s. 2. every journeyman shearman, and not to hurt 
 
 (b) And not less than three, 54 & 55 Vict, any of them, and you shall not divulge any 
 '. 69. of their secrets ; so help you God.'
 
 chap, xiii.] Administering and Taking Unlawful Oaths. 40<~, 
 
 wages and make regulations in a certain trade, and not to stir up 
 mutiny or sedition. It was contended that the words of the statute, 
 however large in themselves, must be confined to the object stated in 
 the preamble ; and could not have been intended to reach a case where 
 it was plain that the fact arose entirely out of a private dispute be- 
 tween persons engaged in the same trade, and was confined in its 
 object to that alone; and that the general words therefore nxusl ln- 
 construed with relation to the antecedent offences, which are confined 
 in their objects to mutiny and sedition. But the Court, though they 
 did not upon the particular circumstances feel themselves called upon 
 to give an express decision, appear to have entertained no doubt but 
 that the case was within the statute, (d) 
 
 So where sixteen persons, with their faces blackened, met at a house 
 at night, having guns with them, and intending to go out for the pur- 
 pose of night poaching, and were all sworn not to betray their com- 
 panions, and it was objected that this oath was not within the statute, 
 as it was not for a mutinous or seditious object, and that the statute only 
 prohibited those oaths of secrecy which related to some illegal act, and 
 that the word 'illegal' imported a criminal act, and not a mere civil 
 trespass, whereas it was a mere civil trespass which was contemplated 
 at the time when the oath was administered, it was held that the oath 
 was within the statute ; and as to the assembly itself, and its object, it 
 was impossible that a meeting to go out with faces thus disguised, at 
 night, and under such circumstances, could be other than an unlawful 
 assembly : in which case, the oath to keep it secret was an oath pro- 
 hibited by the statute, (e) So where an oath was administered to the 
 members of a trades' union, binding them not to make buttons for less 
 than the lodge prices, and not to divulge the secrets of the lodge, it 
 was held that this was an oath within the statute, for to administer 
 an oath or engagement not to reveal the secrets of any association is 
 within the 37 Geo. 3, c. 137, as explained by subsequent statutes, not 
 because it has reference to any matter respecting wages, but on the 
 ground that every association of that kind, bound together by an oath, 
 not to disclose the proceedings of that society, is for that reason an 
 unlawful combination within the statutes. (/ ) 
 
 So where an oath not to reveal what they saw or heard was admin- 
 istered by members of an association, which was formed for the pur- 
 pose of raising wages by a general strike on the part of its members, 
 and for other purposes in furtherance of that design, it was held that 
 it was within the 37 Geo. 3, c. 123. (#) 
 
 The 52 Geo. 3, c. 104, s. 1, which was passed to render the fore- 
 going Act more effectual in respect to oaths of a particular nature, 
 enacts, 'that every person who shall in any manner or form whatso- 
 ever administer, or cause to be administered, or be aiding or assist- 
 ing at the administering of any oath or engagement, purporting or 
 
 (d) R. v. Marks, 3 East, 157. Law- (c) R. v. Brodribb, 6 C. & P. 571, Hol- 
 
 rence, J., said, ' It is true that the preamble royd, J. 
 
 and the first part of the enacting clause are (/) R. v. Ball, 6 C. & P. 563, Wil- 
 
 confined in their objects to cases of mutiny Hams, J. 
 
 and sedition ; but it is nothing unusual in (q) R. v. Loveless, 1 M. & Rob. 349 ; 
 
 Acts of Parliament for the enacting part to S. C, 6 C. & P. 596, Williams, J. See R. 
 
 go beyond the preamble ; the remedy often v. Dixon, 6 C. & P. 601, Bosanquet, J. 
 extends beyond the particular act or mischief 
 which first suggests the necessity of the law. '
 
 406 Administering and Taking Unlawful Oaths, [book ii. 
 
 intending to bind the person taking the same to commit any treason 
 or murder, or any felony punishable by law with death,' shall, on con- 
 viction, be adjudged guilty of felony, and suffer death as a felon with- 
 out benefit of clergy ; (h) and ' every person who shall take any such 
 oath or engagement, not being compelled thereto,' shall, on conviction, 
 be adjudged guilty of felony, and be transported (i) for life, or for such 
 term of years as the Court shall adjudge. 
 
 But persons taking the oaths mentioned in either of these Acts by 
 compulsion must make a full disclosure of the fact, and the circum- 
 stances attending it, within a limited time, in order to lie justified or 
 excused, The 37 Geo. 3, c. 123, s. 2, enacts, 'that compulsion shall 
 not justify or excuse any person taking such oath or engagement, 
 unless he or she shall, within four days after the taking thereof, if not 
 prevented by actual force or sickness, and then within four days after 
 the hindrance produced by such force or sickness shall cease, declare 
 the same, together with the whole of what he or she shall know 
 touching the same, and the person or persons by whom, and in whose 
 presence, and when and where, such oath or engagement was adminis- 
 tered or taken, by information on oath before one of his Majesty's 
 justices of the peace, or one of his Majesty's principal secretaries of 
 state, or his Majesty's privy council : or in case the person taking 
 such oath or engagement shall be in actual service in his Majesty's 
 forces by sea or land, then by such information on oath as aforesaid, 
 or by information to his commanding officer.' The 52 Geo. 3, c. 104, s. 2, 
 contains a similar enactment as to the oaths or engagements within 
 that Act, except that the words 'fourteen days ' are substituted for 
 ' four days.' 
 
 By the 37 Geo. 3, c. 123, s. 5, any engagement or obligation whatso- 
 ever in the nature of an oath, and by the 52 Geo. 3, c. 104, s. 6, any 
 engagement or obligation whatsoever in the nature of an oath purport- 
 ing or intending to bind the person taking the same to commit any 
 treason or murder, or any felony punishable by law with death, shall 
 be deemed an oath within the intent and meaning of those Acts, in 
 whatever form or manner the same shall be administered or taken : 
 and whether the same shall be actually administered by any person 
 or persons to any other person or persons, or taken by any person or 
 persons without any administration thereof by any other person or 
 persons. 
 
 If the oath administered was intended to make the party believe 
 himself under an engagement, it is equally within the Act, whether 
 the book made use of be a testament or not. (j) So the precise form 
 of the oath is immaterial ; it is an oath within the meaning of the 
 Acts, if it was understood by the party tendering, and by the party 
 taking it, as having the force and obligation of an oath, (k) 
 
 (h) But this punishment was abolished imprisonment with hard labour, not exceed- 
 by the 1 Vict. c. 91, s. 1, by which, and ing one month at a time, or three months in 
 sec. 2, and other statutes, the punish- the course of one year. 
 
 ment now is penal servitude for life, or (i) Penal servitude as stated in the pre- 
 
 for any term not less than three years, or ceding note. 
 
 imprisonment, with or without hard labour, (j) R. v. Brodribb, 6 C. & P. 571, Hol- 
 
 iu the common gaol or house of correction royd, J., where an account book, called The 
 
 for any term not exceeding three years, and Young Mans Best Companion, was used, 
 
 solitary confinement for any portion or por- (k) R. v. Loveless, M. & Rob. 349, Wil- 
 
 tions of such imprisonment, or of such Hams, J.
 
 chap, xiii.] Administering and Taking Unlaivfid Oaths. 407 
 
 With respect to persons aiding and assisting at the administering 
 or taking these unlawful oaths, the 37 Geo. 3, c. 123, s. 3, enacts, that 
 persons aiding and assisting at, or present and consenting to, the ad- 
 ministering or taking of any oath or engagement before mentioned in 
 that Act; and persons causing any such oath or engagement to be 
 administered or taken, though not present at the administering or 
 taking thereof, shall be deemed principal offenders, and tried as such ; 
 although the person or persons who actually administered such oath 
 or engagement, if any such there shall be, shall not have been tried or 
 convicted. A similar enactment is contained in the 52 Geo. 3, c. 104, 
 s. 4, with respect to persons aiding and assisting at the administering 
 of any oath or engagement mentioned in that Act, and persons caus- 
 ing any such oath or engagement to be administered, though not 
 present at the administering thereof : such persons are to be deemed 
 principal offenders, and, on conviction, to be adjudged guilty of felony, 
 and to suffer death without benefit of clergy, (7) although the person 
 or persons who actually administered the oath or engagement, if any 
 such there shall be, shall not have been tried or convicted. 
 
 Both the statutes provide that it shall not be necessary to set forth 
 in the indictment ' the words of the oath or engagement ; ' and that ' it 
 shall be sufficient to set forth the purport of such oath or engagement, 
 or some material part thereof.' (m) Upon an indictment on the 37 
 Geo. 3, the fourth count charged, that the defendants administered to 
 J. H. an oath ' intended to bind him not to inform or give evidence 
 against any member of a certain society formed to disturb the public 
 peace for any act or expression of his or theirs, done or made collec- 
 tively or individually, in or out of that or other similar societies, in 
 pursuance of the spirit of that obligation ; ' and the eighth count stated 
 the oath to be ' intended to bind the said J. H. not to give evidence 
 against any associate in certain associations and societies of persons 
 formed for seditious purposes ; ' and the other counts stated the objects 
 of the oath administered, and the objects of the society, differently 
 and more generally adapted to several prohibitory parts of the stat- 
 ute. Upon objection taken at the trial to the generality of the state- 
 ments in the indictment, Lord Avenley was of opinion that the Act 
 intended that it should be sufficient to allege and prove what the 
 object of the oath and engagement was, without stating any words at 
 all ; and that the offence being described in the words of the Act, was 
 well described ; but that supposing the objection made to the generality 
 of the counts was good, which he did not admit, yet that in the fourth 
 and eighth a material part of the oath or engagement was set forth 
 according to the clause of the Act. The point was submitted to the 
 judges, who, without giving any opinion against the other counts, all 
 agreed that at any rate the fourth and eighth counts were good, (n) 
 
 If the indictment state the oath to have been not to inform or give 
 evidence against any person belonging to a confederacy of persons 
 associated together to do ' a certain illegal act,' it is sufficient without 
 going on to state what the illegal act was. For the offence is not the 
 illegal act, but the administration of the oath, which preceded it, and 
 
 (l) Abolished by the 1 Vict. c. 91, s. 1, (??i) 37 Geo. 3, c. 123, s. 4. 52 Geo. 3, 
 
 see note (h), ante, p. 406, for the present c. 104, s. 5. 
 punishment. (?i) R. v. Moors, 6 East, 419, note (b)
 
 408 Administering and Taking Unlawful Oaths, [book ii. 
 
 all that the rules of pleading require is that the offence — that is the 
 oath itself — should be sufficiently set out. (o) Where an indictment 
 charged that the prisoner administered ' a certain oath ' to J. Penny, 
 and fifteen others, naming them, and it was proved that the sixteen 
 were all sworn in the same manner, on the same book, two or three at 
 a time, at the same meeting, it was held that this was sufficient, for it 
 was the same act of administering. Or it might be taken to be a com- 
 plete transaction with respect to each person sworn ; and the charge 
 would be substantiated by evidence of the prisoner having sworn any 
 one of the party, in the same way as a man may be convicted of lar- 
 ceny on proof of stealing one out of several articles named hi an 
 indictment, (j?) 
 
 Where the witness, swearing to the words spoken by way of oath by 
 the prisoner when he administered it, said that he held a paper in his 
 hand at the time when he administered the oath, from which paper it 
 was supposed that he read the words ; it was held, that parol evidence 
 of what he in fact said was sufficient, without giving him notice to 
 produce such paper, (q) And where the oath on the face of it did 
 not purport to be for a seditious purpose, though it was objected that 
 no parol evidence could be given to show that the ' brotherhood ' men- 
 tioned in it was of a seditious nature, it was held that declarations 
 made at the time by the party administering such oath were admis- 
 sible to prove the real object of it. (r) 
 
 Both the 37 Geo. 3 and 52 Geo. 3, provide that offences committed 
 on the high seas, or out of the realm, or in England, shall be tried 
 before any court of oyer and terminer or gaol delivery for any county 
 in England in such manner and form as if such offence had been 
 therein committed, (s) 
 
 It is also provided by both these statutes that any person who shall 
 be tried and acquitted or convicted of any offence against the Acts, 
 shall not be liable to be prosecuted again for the same offence or fact 
 as high treason, or misprision of high treason. And further, that 
 nothing in the Acts contained shall be construed to extend to prevent 
 any person guilty of any offence against the Acts, and who shall not be 
 tried for the same as an offence against the Acts, from being tried for 
 the same, as high treason, or misprision of high treason, in such man- 
 ner as if those Acts had not been made, (t) 
 
 By the 57 Geo. 3, c. 19, s. 25, it is enacted that all societies or clubs, 
 the members whereof shall be required or admitted to take any oath 
 or engagement, which shall be an unlawful engagement within the 
 37 Geo. 3, c. 123, or the 52 Geo. 3, c. 104, or to take any oath not re- 
 quired or authorized by law ; and every society or club, the members 
 whereof, or any of them, shall take, or in any manner bind themselves 
 by any such oath or engagement on becoming, or in order to become, 
 or in consequence of being a member or members of such society or 
 dub; and every society or club, the members or any member whereof 
 shall be required or admitted to take, subscribe, or assent to any test 
 
 (o) R. v. Brodribb, 6 C. & P. 571, Hoi- (s) 37 Geo. 3, c. 123, s. 6 ; 52 Geo. 3, 
 
 royd, J. c. 104, s. 7. 
 
 (p) Ibid. (1) 37 Geo. 3, c. 123, s. 7 ; 52 Geo. 3, 
 
 (q) R. v. Moors and others, 6 East, 421. c. 104, s. 8. 
 (r) Id. ibid.
 
 CHAr. xiii.] Administering and Tahiwj Unlawful Oaths, 409 
 
 or declaration not required or authorized by law, in whatever manner 
 or form such taking or assenting shall he performed, whether by winds, 
 signs, or otherwise, either on becoming, or in order to become, or in 
 consequence of being a member or members of any such society or 
 club ; shall be deemed and taken to be unlawful combinations and 
 confederacies within the meaning of the 39 Geo. 3, c. 79, (u) and 
 may be prosecuted, proceeded against, and punished according to the 
 provisions of the said Act. (v) 
 
 The mutual promises and engagements of societies are lawful, unless 
 they are clearly prohibited by law ; and it lies on the party who alleges 
 that such promises and engagements are illegal to prove that they are 
 so. Where, therefore, it appeared from the rules of a lodge of Oddfel- 
 lows that the members entered into an 'engagement to abide by the 
 rules, and one of the rules was to keep the secrets of the society ; but 
 all secrets had been abolished ; and the rules had not been enrolled : 
 Erie, J., held that there was nothing to show that the engagement was 
 illegal ; the subjects of this realm might enter into any engagement 
 they pleased, unless prohibited by law, and the party objecting to the 
 legality of an engagement must show that it is illegal, (w) 
 
 This statute further enacts, that a person compelled by inevitable 
 necessity to commit any of these offences, shall be excused and justi- 
 fied upon proof of such necessity, if within ten days (not being pre- 
 vented by actual force or sickness, and then within seven days after 
 such actual force or sickness shall cease to disable him) he disclose to 
 a justice of peace, by information on oath, the whole of what he 
 knows touching his compulsion, (x) Persons aiding at the adminis- 
 tering or tendering the oath or engagement, and persons causing the 
 oath or engagement to be administered or tendered, though not present, 
 are to be deemed principal offenders, and tried as such, though the per- 
 son who actually administered such oath or engagement shall not have 
 been tried or convicted, (y) And the statute also provides, that it shall 
 be sufficient to set forth in the indictment the purport or object of such 
 oath or engagement, (z) 
 
 The 5 & 6 Will. 4, c. 62, in many cases substituted a declaration in 
 lieu of an oath; and by sec. 13, reciting that 'a practice has prevailed 
 of administering and receiving oaths and affidavits voluntarily taken 
 and made in matters not the subject of any judicial inquiry, nor in 
 any wise pending or at issue before the justice of the peace or other 
 person by whom such oaths or affidavits have been administered or re- 
 ceived,' and that ' doubts have arisen whether or not such proceeding 
 is illegal ; for the more effectual suppression of such practice and 
 removing such doubts,' enacts that, after the 1st of October, 1835, 'it 
 shall not be lawful for any justice of the peace or other person to ad- 
 minister, or cause or allow to be administered, or to receive, or cause 
 
 (it) See this Act, post. also, that no person shall be excluded from 
 
 (v) This statute is not to extend to Free- the defence of inevitable necessity, who shall 
 
 masons' lodges, nor to any declaration ap- be tried for an offence within ten days from 
 
 proved by two justices, nor to Quakers' the commission of it, or of seven days from 
 
 meetings, nor to meetings or societies for the time when the force or sickness shall 
 
 charitable purposes, sec. 26. By sec. 39, cease, 
 the Act is not to extend to Ireland. (y) Sec. 3. 
 
 (w) R. v. Rouse, 4 Cox, C. C. 7. (a) Sec. 4. 
 
 (x) Sec. 2. And the section provides
 
 410 Administering and Taking Unlawful Oaths, [book ii. 
 
 or allow to be received, any oath, affidavit, or solemn affirmation touch- 
 ing any matter or thing whereof such justice or other person hath not 
 jurisdiction or cognizance by some statute in force at the time being. 
 Provided always that nothing herein contained shall be construed to 
 extend to any oath, affidavit, or solemn affirmation before any justice 
 in any matter or thing touching the preservation of the peace, or the 
 prosecution, trial, or punishment of offences, or touching any proceed- 
 ings before either of the Houses of Parliament, or any Committee 
 thereof respectively, nor to any oath, affidavit, or affirmation which 
 may be required by the laws of any foreign country to give validity to 
 instruments in writing designed to be used in such foreign countries 
 respectively.' 
 
 It has been doubted whether an indictment can be sustained for 
 administering an oath contrary to this clause, and, supposing it can, 
 such an indictment is bad unless it set out so much at least of the 
 oath as may enable the Court to see that the oath is one which is pro- 
 hibited by the clause. An indictment alleged in several counts that 
 the defendant administered a voluntary oath' touching certain matters 
 whereof he had not jurisdiction by any statute, and some counts nega- 
 tived the oaths, &c, in the proviso ; and the Court of Queen's Bench 
 held that the indictment was bad ; for the having or not having juris- 
 diction is a matter of law depending upon the facts, upon which the 
 Court is to form an opinion. There ought, therefore, to be a distinct 
 allegation of the subject-matter of the oath, showing affirmatively that 
 it was out of the jurisdiction. But the Court expressed no opinion 
 whether the indictment would lie ; Lord Denman, C. J., however, 
 seems to have thought that it would be necessary to show that the 
 disobedience was wilful and in the nature of a contempt, in order to 
 convict a person of disobeying the clause, (a) 
 
 (a) R. v. Nott, 4 Q. B. 768. The major- contain express provisions to that effect 
 
 ity of the Court thought that it was not (ante, p. 406), and, therefore, it would cer- 
 
 necessary to set out the whole oath ; but the tainly be prudent to set out the whole oath, 
 
 37 Geo. 3, c. 123, and 52 Geo. 3, c. 104, if practicable, in some counts.
 
 CHAPTER THE FOURTEENTH. 
 
 OP MISPEISION OF FELONY AND OF COMPOUNDING OFFENCES. 
 
 By misprision of felony is generally understood the concealment of 
 felony, or a procuring such concealment, whether it be felony by the 
 common law, or by statute, (a) Thus, silently to observe the com- 
 mission of a felony without using any endeavour to apprehend the 
 offender, is a misprision ; (b) for a man is bound to discover the crime 
 of another to a magistrate with all possible expedition, (c) as the law 
 does not allow any private person to forego a prosecution on any 
 account, (d) But there must be knowledge merely without assent ; 
 for if a man assent to a felony, he will be either principal or acces- 
 sory, (e) The punishment of this offence in an officer is imposed by 
 the statute of Westminster, 3 Edw. 1, c. 9, which enacts (as amended), 
 that ' if any bailiff within a franchise, or without, for reward, or for 
 prayer, or for fear, or for any manner of affinity, conceal, consent, or 
 procure to conceal, the felonies done in their liberties ; or otherwise 
 will not attach nor arrest such felons there (as they may), or other- 
 wise will not do their office, for favour borne to such misdoers, and 
 be attainted thereof, they shall have one year's imprisonment, and 
 after make a grievous fine at the King's pleasure, if they have where- 
 with ; and if they have not whereof, they shall have imprisonment of 
 three years.' The punishment in the case of a common person, is 
 imprisonment for a less discretionary time ; and in both cases fine 
 and ransom at the King's pleasure. (/ ) 
 
 Compounding felony. — Of a similar nature to this offence of mis- 
 prision of felony, is the offence of compounding of felony, mentioned 
 in the books by the more ancient appellation of theft-bote, which is 
 where the party robbed not only knows the felon, but also takes his 
 goods again, or other amends, upon agreement not to prosecute, (g) 
 It is said to have been anciently punishable as felony ; but is now 
 punished only with fine and imprisonment, unless it is accompanied 
 with some degree of maintenance given to the felon, which makes the 
 party an accessory after the fact, (h) But the barely taking again of 
 one's own goods which have been stolen, is no offence at all unless 
 some favour be shown to the thief, (i) 
 
 (a) 1 Hawk. P. C. c. 59, s. 2. 3 Inst. observed, once for all, not to signify any 
 139. extrajudicial will of the sovereign, but such 
 
 (b) 1 Hale, 374, 375. 1 Hawk. P. C. as is declared by his representatives, the 
 c. 59, s. 2, note (1). judges in his courts of justice ; voluntas Regis 
 
 (c) 3 Inst. 140. in curia, non in camera.' 
 
 (d) K. v. Daly, 9C. &P. 342. Gurney, B. (g) 1 Hawk. P. C. c. 59, s. 5. 4 Blac. 
 (c) 4 Blac. Com. 121. But see 1 Hale, Com. 133. 
 
 616, cited ante, p. 170. (h) 1 Hawk. P. C. c. 59, s. 6. 2 Hale, 
 
 (/) 4 Blac. Com. 121, where it is said, 400. 
 'which pleasure of the King must be (/) 1 Hawk. P. C. c. 59, s. 7.
 
 412 Compounding Offences. [book ii. 
 
 Compounding a mere charge of felony is illegal ; as where a person, 
 having charged a man before a magistrate with embezzlement, agrees 
 not to prosecute the charge in consideration of a bill of exchange being 
 accepted by another person, (j) 
 
 Where an indictment for compounding felony alleged that after 
 taking a sum of money for compounding, the defendant desisted from 
 prosecuting, and it appeared that he did prosecute to conviction, the 
 defendant was held entitled to be acquitted, (k) But where the in- 
 dictment did not allege that the defendant desisted from prosecution 
 it was held that this was good, (kk) The offence of compounding a 
 larceny may be committed by a person other than the owner of the 
 stolen goods or a material witness for the prosecution. So where the 
 owner of the goods said he would leave the matter in the hands of 
 another, and that other compounded the felony, it was held that the 
 latter could be convicted. (I) 
 
 It is made felony by the 24 & 25 Vict. c. 96, s. 101, (m) to take 
 any reward for helping a person to any property stolen or obtained by 
 false pretences ; and to advertise a reward for the return of things 
 stolen, involves a forfeiture of fifty pounds by sec. 102 of the same 
 Act. (n) 
 
 Compounding misdemeanors. 1 - — An agreement to put an end to a 
 prosecution for a misdemeanor has been considered to be illegal, as 
 impeding the course of public justice ; (o) but it is sometimes done 
 after conviction, with the sanction of the Court, in cases where the 
 offence principally and more immediately affects an individual ; the 
 defendant being permitted to speak with the prosecutor before any judg- 
 ment is pronounced, and a trivial punishment being inflicted if the 
 prosecutor declares himself satisfied. ( p) And where, in a case of an 
 indictment for ill-treating a parish apprentice, a security for the fair 
 expenses of the prosecution had been given by the defendant after 
 conviction, upon an understanding that the Court would abate the 
 period of his imprisonment, the security was held to be good, upon 
 the ground that it was given with the sanction of the Court, and to 
 be considered as part of the punishment suffered by the defendant in 
 expiation of his offence, in addition to the imprisonment inflicted on 
 him. (q) 
 
 So where a defendant was prosecuted by parish officers, and con- 
 
 (j) Fivaz v. Nicholls, 2 C. B. 501. (/>) 4 Blac. Com. 363, 364. 
 
 Rawlings v. The Coal Consumers' Associa- (q) Beeley v. Wingfield, 11 East, 46. 
 
 tion Limited, 43 L. J. M. C. 111. See the observations on this case in 6 Q. B. 
 
 (/.) R. v. Stone, 4 C. & P. 379. Bosan- 320 ; and see also Baker v. Townshend, 7 
 
 quet, J. Taunt. 422. But in general any contract or 
 
 (kk) R. v. Burgess, 16 Q. B. D. 141. security made in consideration of dropping a 
 
 (?) R. v. Burgess, supra. criminal prosecution, suppressing evidence, 
 
 (m) See vol. 2, ch. 29. soliciting a pardon, or compounding any 
 
 (n) See vol. 2, ch. 29. public offence, without leave of the Court, is 
 
 (o) Collins v. Blantern, 2 Wils. 341. invalid. 1 Chit. Crim. Law, 4. 2 
 
 Edgecombe v. Rodd, 5 East, 294. 
 
 American Notes. 
 
 1 According to Mr. Bishop's view of the signed by the guilty party as a consideration 
 law it is no offence to compound a very small for not prosecuting has been held to be a 
 misdemeanor. Bishop, i. s. 711. compounding of a felony. Co. v. Pease, 16 
 
 2 In America the acceptance of a note Mass. Rep. 91.
 
 chap, xiv.] Misprision of Felony. 413 
 
 victed for disobeying an order of maintenance, and sentence was de- 
 ferred by the Court with a view to an arrangement, and in the meantime 
 he was committed to prison, and the officers demanded a sum consid- 
 erably exceeding the amount of maintenance due, but part of which 
 was to cover costs ; the defendant paid part, and gave a note for the 
 remainder, and was then brought into Court, fined Is. and discharged ; 
 it did not appear whether the particulars of the arrangement were 
 made known to the Court, but the defendant made no complaint 
 when brought up ; it was held that the compromise was legal. <r) 
 
 It has been laid down, that ' the law will permit a compromise of 
 all offences, though made the subject of a criminal prosecution, for 
 which offences the injured party might recover damages in an ac- 
 tion.' (s) But it seems that this proposition should be limited to the 
 ' cases where the private rights of the injured party are made the sub- 
 ject of agreement, and where by the previous conviction of the defend- 
 ant the rights of the public are also preserved inviolate.' (£) For 
 ' when a verdict of guilty is taken, and the Court suspend judgment, 
 and allow the questions between the parties to be referred, the mat- 
 ter is very different, for then it is only to enable the Gourt the better 
 to see what sentence ought to be given.' (w) ' But if the offence is of 
 a public nature, no agreement can be valid that is founded on the con- 
 sideration of stifling a prosecution for it.' (v) A contract therefore to 
 withdraw a prosecution for perjury, and to give no evidence against 
 the accused, is founded on an illegal consideration and void, (w) 
 
 So where an action was brought on an agreement, by which the 
 defendants, in consideration that the plaintiff, being the prosecutor 
 of an indictment against certain persons for an assault and riot, would 
 not proceed further on such indictment, promised the plaintiff to pay 
 him a certain sum of money, and in pursuance of that agreement the 
 plaintiff did not proceed further with the indictment, and informed 
 the Court, before which the indictment was pending, of the premises, 
 and, by leave of the Court, forbore to give evidence upon the indictment, 
 and thereupon there was an acquittal ; it was held that the agreement 
 was illegal ; for the offence was not confined to the personal injury, 
 but was accompanied with a riot, which was a matter of public con- 
 cern, and therefore not legally the subject of compromise, (x) 
 
 In one case an indictment for a nuisance by making an embankment 
 in the Thames, whereby the navigation was obstructed, was referred ; (//) 
 but the question of the legality of the reference was not raised. But 
 where an indictment had been preferred against the defendant for non- 
 repair of a highway, which it was alleged he ought to have repaired 
 ratione tenurce ; the prosecutor and defendant before the trial agreed 
 to leave the question of liability to repair to reference ; the arbitrator 
 was to make an award on the evidence adduced before him ; a verdict 
 
 (/•) Kirk v. Strickwood, 4 B. & Ad. 421. (v) Keir v. Leeman, 6 Q. B. 308. 
 
 (s) Keir v. Leeman, 6 Q. B. 308. Cannon v. Rands, 11 Cox, C C. 631. 
 
 (t) Keir v. Leeman, 9 Q. B. 371, in error, (w) Per Curiam, ibid, citing Collins v. 
 
 affirming the judgment of the Queen's Blantern, 2 Wils. 341. 
 Bench. Windhill L. B. v. Vint, 45 Ch. D. (x) Keir v. Leeman, supra. 
 
 351, as to indictment for obstructing a high- \y) R. v. Dobson, 6 Q. B. 637. See 
 
 way. Fallowes v. Taylor, 7 T. R. 475, and the 
 
 (u) R. v. Hardey, 14 Q. B. 529. R. v. observations on this case, 9 Q. B. 393. 
 Roxburgh, 12 Cox, C. C. 8, an indictment 
 for a common assault.
 
 414 Compounding Offences. [book il 
 
 was to be entered according to the result of the award, and the arbi- 
 trator awarded that the defendant was guilty of the non-repair alleged 
 in the indictment : it was held that the reference was illegal, as the 
 question of liability to repair was of public concern, (z) 
 
 An indictment for conspiracy cannot be compromised, (a) 
 
 Where, however, indictments for perjury and conspiracy were re- 
 moved into the Queen's Bench, and on the indictment for perjury 
 coming on for trial, it was agreed, under the strong advice of counsel, 
 that no evidence should be tendered, a verdict of not guilty taken on 
 both indictments, and that all matters in difference between the pros- 
 ecutor and defendant should be referred to a barrister ; it was held 
 that it would have been illegal to refer the indictment for perjury, 
 and, as it should seem, the indictment for conspiracy ; but that the 
 indictments were not referred, and the verdicts of acquittal must at 
 all events stand; and that there was nothing illegal in referring all 
 matters in difference and at the same time consenting to verdicts of 
 acquittal, unless there was a corrupt agreement to stifle the prosecution, 
 which did not appear to be the fact, (b) 
 
 It is clear that the consent of the Court cannot make an agree- 
 ment to abandon a prosecution valid, if it would otherwise be 
 unlawful, (c) 
 
 Cmpounding informations on penal statutes. — The compounding of 
 informations on penal statutes is a misdemeanor against public jus- 
 tice, by contributing to make the laws odious to the people, (d) There- 
 fore in order to discourage malicious informers, and to provide that 
 offences, when once discovered, shall be duly prosecuted, it was en- 
 acted by the 18 Eliz. c. 5, s. 4, 1 that if any person, 'by colour or pre- 
 tence of process, or without process upon colour or pretence of any 
 matter of offence against any penal law, make any composition, or 
 take any money, reward, or promise of reward,' without the order or 
 consent of some Court, he shall stand two hours in the pillory, (e) be 
 for ever disabled to sue on any popular or penal statute, and shall for- 
 feit ten pounds. This severe statute extends even to penal actions, 
 where the whole penalty is given to the prosecutor. (/) But it does 
 not apply to penalties which are only recoverable by information 
 before justices, (g) 
 
 In a case where it was held that threatening, by letter or otherwise, 
 to put in motion a prosecution by a public officer to recover penalties 
 for selling Fryer's Balsam without a stamp, (h) for the purpose of 
 obtaining money to stay the prosecution (not being such a threat as a 
 
 (z) R. v. Blakemore, 14 Q. B. 544. fine or imprisonment, or of both, in lieu of 
 
 (") R. v. Hardey, supra. See R. v. the sentence of pillory, as to the Court shall 
 
 Bardell, 5 A. & E. 619, where such an seem proper ; and see the 7 Will. 4 & 1 Vict. 
 
 indictment was referred, but the lawfulness c. 23. The 18 Eliz. was made perpetual by 
 
 of the reference was not raised. the 27 Eliz. c. 10. 
 
 (6) R. v. Hardey, supra. (/) 4 Blac. Com. 136, note (3). 
 (c) Keir v. Leeman, supra. \g) R. v. Crisp, 1 B. & Aid. 282. 
 (rf) 4 Blac. Com. 136. (h) By the 42 Geo. 3, c. 56, it was pro- 
 le) This part of the punishment is abo- hibited to be vended without a stamped 
 
 lished by the 56 Geo. 3, c. 138. But sec. 2 label. 
 
 empowers the Court to pass such sentence of 
 
 American Note. 
 
 1 It seems doubtful whether this statute discharge of the wrongdoer on his making 
 would be acted upon in America. In some full reparation. Bishop i. ss. 712, 713 (3). 
 States there are statutes providing for the
 
 chap, xiv.] Misprision of Felony. 415 
 
 firm and prudent man might not be expected to resist), was not in 
 itself an indictable offence at common law, though it was alleged that 
 money was obtained, it seems to have been considered that such an 
 offence would be indictable under the foregoing section of this statute 
 of Elizabeth, (i) But no indictment for any attempt to commit such 
 a statutable misdemeanor can be sustained as a misdemeanor at com- 
 mon law, without at least bringing the offence intended within, and 
 laying it to be against, the statute. Though if the party so threatened 
 had been alleged to be guilty of the offence imputed, within the stat- 
 ute imposing the duty and creating the penalty, such an attempt to 
 compound and stifle a public prosecution for the sake of private lucre, 
 in fraud of the revenue, and against the policy of the statute (which 
 gives the penalty as auxiliary to the revenue, and in furtherance of 
 public justice for the sake of example), might also, upon general prin- 
 ciples, have been deemed a sufficient ground on which to have sus- 
 tained the judgment at common law (/') 
 
 A party is liable to the punishment prescribed by the 18 Eliz. c. 5, 
 for taking the penalty imposed by a penal statute, though there is no 
 action or proceeding for the penalty. The prisoner applied to one 
 Eound, and demanded five pounds, as a penalty which Round had 
 incurred under the General Turnpike Act, by suffering his waggon to 
 be drawn on a turnpike road by more than four horses. Round had 
 incurred such a penalty, and the prisoner obtained the money by way 
 of composition to prevent any legal proceedings ; no process had been 
 sued out, and no information had been laid before a magistrate. The 
 prisoner having been convicted, judgment was respited, upon a doubt 
 whether the offence was within the statute, so as to subject the pris- 
 oner to the specific punishment therein prescribed, inasmuch as no 
 action or proceeding was depending in which the order or consent of 
 any Court in Westminster Hall for a composition could have been 
 obtained. But the judges were all of opinion that the conviction was 
 right, and that the statute applies to all cases of taking a penalty in- 
 curred, or pretended to be incurred, without leave of a Court at West- 
 minster, or without judgment or conviction, (k) 
 
 A person may be convicted under the 18 Eliz. c. 5, s. 4, for taking 
 money upon colour or pretence of a party having committed an offence, 
 though in fact no offence liable to a penalty has been committed by 
 the person from whom the money is taken. {I s ) As to taking rewards 
 for the recovery of stolen goods, &c, see further, Vol. ii., ch. 29. 
 
 (i) R. v. Southerton, 6 East, 126. But (k) R. v. Gotley, East, T. 1805. Russ. 
 
 quaere, and see R. v. Crisp, 1 B. & Aid. 286, & Ry. 84. 
 287. (I) R. v. Best, 2 Moo. C. C. R. 124 ; 
 
 (j) Id. ibid. S. C, 9 C. & P. 368.
 
 CHAPTER THE FIFTEENTH. 
 
 OF OFFENCES BY PERSONS IN OFFICE. 1 
 
 Where an officer neglects a duty incumbent on him, either by com- 
 mon law or by statute, he is indictable for his offence ; and this, 
 whether he be an officer of the common law, or appointed by Act of 
 Parliament : (a) and a person holding a public office under the King's 
 letters patent, or derivatively from such authority, has been considered 
 as amenable to the law for every part of his conduct, and obnoxious 
 to punishment for not faithfully discharging it. (b) And it is laid 
 down generally that any public officer is indictable for misbehaviour 
 in his office.' (c) There is also the further punishment of the forfeiture 
 of the office for the misdemeanor of doing anything directly contrary 
 to its design, (d) And in the case of a coroner, the 50 & 51 Vict. c. 71, 
 s. 8, makes particular provision, and enacts, that when convicted of 
 extortion, or wilful neglect of duty, or misdemeanor in office, he may 
 be removed from office by the judgment of the Court in which he is 
 convicted. And the Lord Chancellor may remove any coroner for ina- 
 bility or misbehaviour in his office. Where a duty is thrown upon a 
 body of several persons, and they neglect it, each is individually liable 
 to prosecution for the neglect, (e) 
 
 It is proposed to treat shortly, in the present chapter, of oppression, 
 negligence, fraud, and extortion, by persons in office ; and of the refusal 
 of persons to execute the duties of their offices when properly appointed ; 
 leaving the subjects of buying and selling offices, and of bribery, for 
 subsequent chapters. 
 
 Oppression by public officers. — The oppression and tyrannical par- 
 tiality of judges, justices, and other magistrates in the administration, 
 and under colour of their offices, may be punished by impeachment in 
 Parliament, or by information or indictment, according to the rank of 
 the offenders, and the circumstances of the offence. (/) Thus if a jus- 
 tice of the peace abuses the authority reposed in him by law, in order to 
 
 (a) R. v. Wyat, 1 Salk. 380. Anon. 6 (/) 4 Blac. Com. 141. A judge is not 
 
 Mod. 96. indictable for an error in judgment. R. v. 
 
 (6) R. v. Bembridge, M. 24 Geo. 3. 1 Loggen and another, 1 Str. 74. As to 
 
 Salk. 380, note (a). County Court judges and other officers they 
 
 (c) Anon. 6 Mod. 96. niay be removed from office and fined for 
 
 (d) 1 Hawk. P. C. c. 66, s. 1. misconduct. See 51 & 52 Vict. c. 43, ss. 15, 
 
 (e) R. v. Holland, 5 T. R. 607. 50, 51. 
 
 American Note. 
 
 1 In America it has been held that if a it, that affords him no defence. P. v. 
 public officer intentionally neglects to do an Brooks, 1 Denio, 471. 
 act iu the belief that he is not bound to do
 
 chap, xv.] Of Offences hy Persons in Office. 417 
 
 gratify his malice, or promote Iris private interests or ambition, he may 
 be punished by indictment or information. 
 
 Misconduct of licensing justices. — But though a justice of the peace 
 should act illegally, yet if he has acted honestly and candidly, with- 
 out oppression, malice, revenge, or any bad view or ill-intention what- 
 soever, the Court will never punish him by the extraordinary course 
 of an information, but will leave the party complaining to his ordi- 
 nary remedy, (g) And whenever justices have been challenged, either 
 by way of indictment, or application for a criminal information, the 
 question has always been, not whether the act done might, upon 
 full and mature investigation, be found strictly right, but from what 
 motive it had proceeded ; whether from a dishonest, oppressive, or cor- 
 rupt motive, 1 under which description fear and favour may generally 
 be included, or from mistake or error. In the former case, alone, 
 they have become the subjects of punishment, (h) But where two 
 sets of magistrates had a concurrent jurisdiction, and one set of them 
 appointed a meeting to grant ale licences, and, after such appointment, 
 the other set of magistrates appointed a meeting for the same purpose 
 on a subsequent day, and having met, granted a licence which had 
 been refused by the first set ; it was held that the proceedings of the 
 magistrates appointing the second meeting were illegal, and the sub- 
 ject of an indictment. Lord Kenyon, C. J. ; said that it was proper the 
 question should be settled whether it were legal for two different sets 
 of magistrates, having a concurrent jurisdiction, to run a race in the 
 exercise of any part of their jurisdiction ; and that it was of infinite 
 importance to the public that the acts of magistrates should not only 
 be substantially good, but also that they should be decorous. And 
 Ashhurst, J., said that it was a breach of the law to attempt to wrest 
 the jurisdiction out of the hands of the magistrates who first gave 
 notice of the meeting ; for what the law says shall not be clone, it be- 
 comes illegal to do, and is therefore the subject-matter of an indict- 
 ment, without the addition of any corrupt motives, (i) So, if a 
 magistrate were wilfully, and in defiance of the known law, to refuse 
 bail in a case where the defendant was entitled to be bailed, he would 
 be liable to a criminal information or indictment, (j) The conduct 
 of justices of the peace in granting or refusing licences to sell ale has 
 been frequently the subject of investigation ; and it seems to be 
 clear that though upon this matter the justices have a discretionary 
 jurisdiction given them by the law, and though discretion means the 
 exercising the best of their judgment upon the occasion that calls for it, 
 yet if this discretion be wilfully abused, it is criminal, and under the 
 control of the Court of King's Bench. (jc) That Court will, therefore, 
 
 (g) R. v. Palmer, 2 Burr. 1162. 1 Blac. (i) R. v. Sainsbury, 4 T. R. 451. 
 
 Com. 354, note (17). (j) R. v. Badger, 4 Q. B. 468 ; and see 
 
 (h) Per Lord Tenterden, C. J., R. v. R. v. Dodgson, 9 A. & E. 704. 
 
 Borron, 3 B. & Aid. 434. Ex parte Fenti- (k) R. v. Young, 1 Burr. 556, 560, etseq. 
 man, 2 Ad. & E. 127. 1 Blac. Com. 354, 
 note (17). 
 
 American Note. 
 
 1 Mr. Bishop (Vol. ii. s. 975) seems to justice of the peace is indictable for a judicial 
 doubt whether the law is well settled that a act however corrupt.
 
 418 Of Offences hy Persons in Office. [book ii. 
 
 grant an information against justices who refuse, from corrupt and 
 improper motives, to grant such licences ; (/) and an information will 
 be granted against them as well for granting a licence improperly as 
 for refusing one in the same manner, (wi) 
 
 Gaolers. — To prevent abuses of the extensive power which the law 
 is obliged to repose in gaolers, the 14 Edw. 3, c. 10, enacted (n) that if 
 any gaoler, by too great duress of imprisonment, makes any prisoner 
 that he hath in ward become an approver or an appellor against his 
 will ; that is, to accuse and turn evidence against some other person ; 
 it shall be felony in the gaoler. For it is not lawful to induce or ex- 
 cite any man even to a just accusation of another ; much less to do it 
 by duress of imprisonment ; and least of all by a gaoler to whom the 
 prisoner is committed for safe custody, (o) And a gaoler may be dis- 
 charged and fined for voluntarily suffering his prisoner to escape, or 
 for barbarously misusing him. (p) So, a gaoler is indictable for refus- 
 ing to receive a prisoner under the commitment of a magistrate, (q) 
 
 Overseers of the poor. — An overseer of the poor is also indictable 
 for misfeasance in the execution of his office ; (?■) if he misuse the 
 poor, as by keeping and lodging several poor persons in a filthy, un- 
 wholesome room, with the windows not in a sufficient state of repair 
 to protect them against the severity of the weather (s) or by exacting 
 labour from them when they are unable to work, (t) And if over- 
 seers conspire to prevail upon a man to marry a poor woman big with 
 child, for the purpose of throwing the expense of maintaining her and 
 the issue from themselves upon another parish or township, they 
 may be indicted, (w) And for most breaches of their duty overseers 
 may be punished by indictment or information : (v) but with respect 
 to the proceeding by information, as it is an extraordinary remedy, 
 the Court of King's Bench will not suffer it to be applied to the 
 punishment of ordinary offences, (w) 
 
 An indictment against overseers on the 5 & 6 Will. 4, c. 76, s. 47, (x) 
 for not accounting to the auditor of a union, upon request, on a day 
 appointed by him, is bad, unless it appear that there was some rule, 
 order, or regulation of the poor-law commissioners that the overseers 
 should account upon such request ; and where no such order, &c, is 
 alleged, the indictment cannot be sustained after verdict, merely be- 
 cause it appears, by inference, or by the inducement, that the defendants 
 have not in fact accounted for one whole quarter. (?/) 
 
 (/) R. v. Williams, 3 Burr. 1317. The (t) R. v. Winship, Cald. 76. 
 
 licences in this case had been refused, because (u) R. v. Compton, Cald. 246. R. v. 
 
 the persons applying for them would not give Tarrant, 4 Burr. 2i06 ; and R. v. Herbert, 
 
 their votes for members of Parliament as the 1 East, P. C. c. 11, s. 11, p. 461. 
 
 justices would have had them. And see {v) R. v. Commings, 1 Bott. 357, pi. 370. 
 
 R. v. Hann, id. 1716, 1786. R. v. Robinson, 2 Burr. 799. R. v. Jones, 
 
 (m) R. v. Holland, 1 T. R. 692. And 1 Bott. 360, pi. 377, 2 Nol. 474. From 
 
 see 1 Burn's Just. tit. Alehouses. these authorities it appears that such pro- 
 
 (n) This statute is, however, repealed by ceeding may be had in some cases where a 
 
 the Stat. Law Rev. Act, 1863. particular punishment is created by statute, 
 
 (o) 4 Blac. Com. 128. 3 Inst. 91. and a specific method of recovering the pen- 
 
 ( /)) 1 Hawk. P. C. c. 66, s. 2. alty is pointed out. But as to this, see ante, 
 
 (q) R. v. Cope, 6 A. & E. 226. 1 X. & p. 199. 
 
 P. 515. 7 C. & P. 720. See the form of ' (w) R. v. Slaughter, Cald. 246, note («). 
 
 indictment there. (.«) Repealed by 45 & 46 Vic. c. 50. 
 
 (r) Tawney's case, 16 Vin. Abr. 415. 1 (y) R. v. Crossley, 10 A. & E. 132. 2 
 
 Bott. 358, pi.' 371. P. & D. 319. 
 
 (s) R. v. Wetheril, Cald. 432.
 
 chap, xv.] Of Offences by Persons in Office. 419 
 
 An overseer of the poor is not indictable if (without fraud or menace), 
 he remove a pauper under an order of removal after it has been con- 
 firmed on appeal by the sessions, subject to the opinion of the Queen's 
 Bench, and before its final determination by that Court, (z) As to an 
 overseer wilfully neglecting his duties under the Registration Acts, see 
 B. v. Hale, ante, p. 202. 
 
 Negligence by public officers. 1 — It has been already stated, that an 
 officer neglecting the duties of his office is guilty of an indictable 
 offence, (a) In some cases also the offence will amount to a forfeiture 
 of his office, if it be a beneficial one ; (6) for, by the implied condition 
 that the grantee of an office shall execute it diligently and faithfully, 
 it appears to be clear that he will be liable to a forfeiture of it, not 
 only for doing a thing directly contrary to . its design, but also for 
 neglecting to attend to his duty at all usual, proper, and convenient 
 times and places, whereby any damage shall accrue to those by or for 
 whom he was made an officer, (c) A coroner neglecting the duties 
 of his office is indictable, (d) A sheriff is indictable for refusing or 
 neglecting to execute a criminal according to his sentence ; but he is 
 not bound to execute a criminal if he be not in his custody, and in 
 such case, if it is intended by the Court which passed the sentence 
 that the sheriff should do execution, there should be a special mandate 
 to the party having the prisoner in custody to deliver him to the 
 sheriff, and another to the sheriff to receive the prisoner and execute 
 him. (e) And an indictment lies at common law against all subordi- 
 nate officers for neglect, as well as misconduct, in the discharge of 
 their official duties. A constable is therefore indictable for neglecting 
 the duties required of him by common law or by statute ; (/) and when 
 a statute requires him to do what without requiring had been his duty, 
 it is not imposing a new duty, and he is indictable at common law for 
 the neglect, (g) 
 
 Negligence by overseers of the poor. — An overseer of the poor is 
 indictable for the wilful neglect of his duty. Thus overseers have been 
 held to be indictable for not providing for the poor ; (h) for refusing to 
 account within four days after the appointment of new overseers, under 
 the 43 Eliz. c. 2 ; (i) for not making a rate to reimburse constables 
 
 (z) R. v. Cooper, 3 Sess. C. 346. (e) R. v. Antrobus, 6 C. & P. 784. 2 
 
 (a) Ante, p. 416. A. & E. 788. 4 N. & M. 565. 
 
 (b) 4 Blac. Com. 140. (/) R. v. Wyat, 1 Salk. 380. Crowther's 
 
 (c) 1 Hawk. P. C. c. 66, s. 1. And see case, Cro. Eliz. 654 ; indictment against a 
 further as to forfeiture of offices, Com. Dig. constable for refusing to make hue and cry 
 Officer, (K. 2) (K. 3), and the Earl of after notice of a burglary. 
 Shrewsbury's case, 9 Co. 50. (g) R. v. Wyat, 1 Salk. 3S1. 
 
 (d) See precedents of indictments against (k) 2 Nolan, 475. Tawncy's case, 1 Bott. 
 coroners for refusing to take inquisitions, or 358, pi. 371. R. v. Winship, Cald. 72. 
 
 for not returning inquisitions according to (i) R. v. Commings, 5 Mod. 179. 2 Nol. 
 
 evidence. 2 Chit. Crim. Law, 255, Cro. 453, 476, where it is observed in the note (3) 
 
 Circ. Comp. (10th edit.) 173. See however that this case occurred prior to 17 Geo. 2. 
 
 50 & 51 Vict. c. 71, s. 8. c. 38. 
 
 American Note. 
 
 1 There are statutes in some of the Iowa, 178 ; C. v. Mitchell, 3 Bush, 30 ; 
 
 States of America dealing with malfeasance McBride v. C, 4 Bush, 331 ; Watson v. 
 
 and non-feasance of public officers. S. v. Hall, 46 Conn. 204 ; S. v. Furguson, 76 N. C. 
 
 Carr, 71 N. C. 106 ; S. v. Hein, 50 Mo. 362: 197 ; Edwards v. S., 2 Tex. Ap. 525 ; S. v. 
 
 Pippin v. S., 36 Tex. 696 ; S. v. Bevans, 37 Lareche, 28 La. An. 26.
 
 420 Of Offences by Persons in Office. [book ii. 
 
 under the 14 Car. 2, c. 14 ; ( /) and for not receiving a pauper sent to 
 them by order of two justices ; (k) or disobeying any other order of 
 justices, where the justices have competent jurisdiction. (I) There may 
 be cases in which the neglect to provide a pauper with necessaries 
 will render an overseer liable to be indicted. Thus where an indict- 
 ment stated that the defendant, an overseer, had under his care a poor 
 person belonging to his township, but neglected and refused to provide 
 for her necessary meat, &c, whereby she was reduced to a state of ex- 
 treme weakness, and afterwards, through want of such reasonable and 
 necessary meat, &c, died, the defendant was convicted and sentenced 
 to a year's imprisonment, (in) And where an overseer was indicted 
 for neglecting to supply medical assistance when required to a pauper 
 labouring under dangerous illness, the learned judge before whom the 
 indictment was tried held that an offence was sufficiently charged and 
 proved, though such pauper was not in the parish workhouse, nor had 
 previously to his illness received or stood in need of parish relief, (n) 
 
 Churchwardens and Clergymen. — By the 1 & 2 Will. 4, C 60, S. 11, 
 an Act for the better regulation of vestries, ' if any churchwarden, 
 rate-collector, overseer, or other parish officer, shall refuse to call meet- 
 ings according to the provisions of this Act, or shall refuse or neglect 
 to make and give the declarations and notices directed to be made and 
 given by this Act, or to receive the vote of any ratepayer as aforesaid, 
 or shall in any matter whatsoever alter, falsify, conceal, or suppress 
 any vote or votes as aforesaid, such churchwarden, rate-collector, over- 
 seer, or other parish officer, shall be deemed and taken to be guilty of 
 a misdemeanor.' 
 
 It has been doubted whether a clergyman who refuses to marry a 
 couple is indictable for such refusal, (o) 
 
 Mayors. — The absence or misconduct of the chief officers of cor- 
 porations at the time of elections, whereby the completion of the elec- 
 tion of other chief officers may be prevented, is punishable by the 
 11 Geo. 1, c. 4, s. 6, which enacts, 'that if any mayor, bailiff or bailiffs, 
 or other chief officer or officers of any city, borough, or town corporate, 
 shall voluntarily absent himself or themselves from, or knowingly and 
 designedly prevent or hinder the election of any other mayor, bailiff, or 
 other chief officer in the same city, borough, or town corporate, upon 
 the day, or within the time appointed by charter or ancient usage for 
 such election ; ' such offender being convicted shall, for every offence, 
 be imprisoned for six months, and be for ever disabled from exercising 
 any office belonging to the same city, borough, or corporation. This 
 voluntary absence from the election of a chief officer must be an 
 
 (j) R. v. Barlow, 2 Salk. 609. 1 Bott. lieving officer for refusing to supply medical 
 
 357, pi. 369. assistance see E. v. Curtis, 15 Cox, C. C. 
 
 [k) R. v. Davis, 1 Bott. 361, pi. 378. 746. 
 
 Say. 163, S. C. (o) R. v. James, 2 Den. C. C. 1. 3 C. & 
 
 (I) 2 Nol. 476. R. v. Boys, Say. 143. K. 167. The indictment seemed open to 
 
 But otherwise where the justices have no several objections. It did not aver that the 
 
 jurisdiction, R. v. Smith, 1 Bott. 415, pi. patties might lawfully marry ; or that the 
 
 461. clergyman was required to perform the cere- 
 
 (m) R. v. Booth, R. & R. 47, note (a). mony at a lawful time, between the appointed 
 
 (n) R. v. Warren, cor. Holroyd, J., hours. Strong intimations were thrown out 
 
 "Worcester Lent Assizes, 1820. See Hays v. that a refusal to marry is merely an ecclesias- 
 
 Bryant, 1 H. Blac. 253. R. v. Meredith, R. tical offence. 
 & R. 46. For an indictment against a re-
 
 chap, xv.] Of Offences by Persons in Office. 421 
 
 absence whereby the mischief complained of in the preamble of the 
 statute, namely, the preventing the completion of the election of a 
 chief officer, may possibly be occasioned. It has been decided, there- 
 fore, that a chief officer voluntarily absenting himself upon the charter 
 day of election of his successor is not indictable, unless his presence as 
 such chief officer be necessary by the constitution of the corporation to 
 constitute a legal corporate assembly for such purpose, (j?) 
 
 Officers and clerks in Chancery. — By the 3 & 4 Will. 4, C 94, S. 41, {jj) 
 ' if any master in ordinary of the high Court of Chancery, or any person 
 holding any office, situation, or employment in any office of the said 
 Court, or under any of the judges or officers thereof, shall, for anything 
 done or pretended to be done relating to his office, situation, or employ- 
 ment, or under colour of doing anything relating to his office, situation, 
 or employment, wilfully take, demand, receive, or accept, or appoint or 
 allow any person whatsoever to take for him or on his account, or for 
 or on account of any person by him named, or in trust for him, or 
 for any other person by him named, any fee, gift, gratuity, or emolu- 
 ment, or anything of value, other than what is allowed or directed 
 to be taken by him as aforesaid, the person so offending, when duly 
 convicted, shall forfeit and pay the sum of 500^., and shall be removed 
 from any office, situation, or employment he may hold in the said 
 Court, and shall be rendered, and is hereby rendered, incapable for 
 ever thereafter of holding any office, situation, or employment in the 
 said Court, or otherwise serving his Majesty, his heirs, or successors.' 
 
 By sec. 42, ' any such offender may be prosecuted either by in- 
 formation at the suit of his Majesty's Attorney-General, or by crim- 
 inal information before his Majesty's Court of King's Bench, or by 
 indictment.' 
 
 By the 15 & 16 Vict. c. 80, masters in ordinary in the Court of 
 Chancery are abolished, and certain duties imposed upon the chief 
 and junior clerks of the Master of the Eolls and Vice-Chancellors ; 
 and by sec. 24, 'Every chief clerk and every junior clerk' appointed 
 under the Act ' shall be subject and liable to such and the same pro- 
 hibitions, prosecutions, penalties, and punishments,' as are by the pre- 
 ceding Act (3 & 4 Will. 4, c. 94, s. 41), 'imposed and directed with 
 respect to persons holding any office, situation, or employment in the 
 said Court of Chancery, or under any of the judges or officers thereof, 
 in the same manner as if the enactments therein contained relating to 
 such officers of the said Court respectively were here repeated.' And 
 by the 18 & 19 Vict. c. 134, s. 2, the provisions contained in the pre- 
 ceding section are applied to junior clerks appointed under that Act. 
 
 Indictment. — Upon an indictment against an officer for neglect of 
 duty, it is sufficient to state that he was such officer, and it is not nec- 
 essary to state his appointment, (r) And in the case of a delinquent 
 in India, prosecuted under the 24 Geo. 3, c. 25, for neglect of duty, it 
 was held not to be necessary to state that the neglect was corrupt ; the 
 statute making it a misdemeanor if it was wilful, (s) And the indict- 
 
 (p) R. v. Corry, 5 East, 372. The Act (r) R. v. Holland, 5 T. R. 607. 
 
 is repealed as to boroughs by the Municipal (s) Id. ibid. ; ss. 1 to 63 of this statute 
 
 Corporations Act, 1882, 45 & 46 Vict. c. 50. are repealed by 35 & 36 Vict. c. 63. 
 
 (q) This enactment is repealed by the 
 Statute Law Revision Act, 1874.
 
 422 Of Offences by Persons in Office. [book ii. 
 
 ment for neglect of duty need not aver that the defendant had notice 
 of all the facts it states, if it was his duty to have known them, (t) 
 Where some of the charges against the defendant were for disobeying 
 orders, and it was stated that those orders were made and communi- 
 cated to him, but their continuance in force was not averred, such an 
 averment was insisted upon as essential ; but the Court said that the 
 orders must be taken to 'continue in force until they were revoked , 
 and the objection was overruled, (it) 
 
 Frauds by public officers. — Public officers may also be indicted for 
 frauds committed in their official capacities. 1 Thus where two per- 
 sons were indicted for enabling others to pass their accounts with the 
 pay office in such a way as to enable them to defraud the government, 
 though it w r as objected that it was only a private matter of account 
 and not indictable, the Court held otherwise, as it related to the public 
 revenue, (v) And if an overseer of the poor receive from the putative 
 father of a bastard child born within the parish a sum of money as a 
 composition with the parish for the maintenance of the child, he is 
 liable to an indictment for fraudulently omitting to give credit for this 
 sum in his accounts with the parish, (w) It was objected in this case, 
 that the defendant was not bound to bring this sum to account, the 
 contract being illegal ;(:r) that the whole might have been recovered 
 back, and that the defendant himself would have been personally an- 
 swerable for it to the putative father ; that the money, therefore, was 
 not the money of the parish, and that the parish was neither defrauded 
 nor damnified by its being omitted in the overseer's accounts. But 
 Lord Ellenborough was of opinion, that though the defendant would 
 have been liable to the putative father for so much of the money as 
 was not expended upon the maintenance of the child and the lying-in 
 of the mother, yet having taken the money as overseer for the benefit 
 of the parish, he was bound to bring it to account, and that he was 
 guilty of an indictable offence by attempting to put it into his own 
 pocket. 
 
 So a clerk to the justices of the peace who imposed a penalty under 
 the Alehouse Act (9 Geo. 4, c. 61, s. 26, now repealed), was indictable 
 for wilfully neglecting and refusing to pay a moiety of such penalty 
 to the treasurer of the county according to the provisions of that 
 Act. {y) 
 
 By the Yorkshire Eegistries Act, 1884 (47 & 48 Vict. c. 54) s. 46, 
 ' If any registrar or other person employed in the register office is 
 party or privy to any act of fraud or collusion in relation to the regis- 
 tration of any assurance, will, or other instrument under this Act, or 
 the giving of any certificate or copy, or the making of any search or 
 the taking of any extract or copy under this Act, or any rules made 
 thereunder, he shall be guilty of a misdemeanor and shall upon con- 
 
 (t) Id. ibid. (w) R. v. Martin, 2 Campb. 268. 
 
 (u) Id. ibid. (&•) See Townson v. Wilson, 1 Campb. 
 
 (v) R. v. Bembridge, cited 6 East, 136. 396. 
 R. v. Baxter, Salop Spr. Ass. 1850. MSS. (y) R. v. Dale, Dears. C. C. 37. 
 
 C. S. G. 5 Cox, C. C. 302, Patteson, J. 
 
 American Note. 
 1 See C. v. Kodes, 6 B. Mon. 171.
 
 chap, xv.] Of Offences by Persons in Office. 423 
 
 viction or indictment be Hal tie to imprisonment with or without hard 
 labour for any period not exceeding two years. 
 
 By 53 Vict. c. 5, a person who has become disqualified to be a com- 
 missioner in lunacy or a secretary or clerk to the commissioners, and 
 continues to act as such, shall be guilty of a misdemeanor. 
 
 It may be observed, that where a duty is thrown on a body consist- 
 ing of several persons, each is individually liable for a breach of duty, 
 as well for acts of commission as for omission ; and where a public 
 officer is charged with a breach of duty, which duty arises from certain 
 acts which he is bound to take notice of, it is not necessary to state 
 that he had notice of those acts, for he is presumed from his situation 
 to know them, (z) 
 
 Extortion by public officers. 1 — Extortion in a large sense signifies 
 any oppression under colour of right : but in a more strict sense signi- 
 fies the unlawful taking by any officer, by colour of his office, of any 
 money or thing of value that is not due to him, or more than is due, 
 or before it is due. (a) 
 
 Sheriffs. — By the Sheriffs' Act, 1887 (50 & 51 Vict. c. 55), s. 29 — 
 
 ' (1) If a person being a sheriff, under-sheriff, bailiff, or officer of a 
 sheriff, whether within a franchise or without, does any of the follow- 
 ing things, that is to say : — 
 
 (a) Conceals or procures the concealment of any felon ; or 
 
 (b) Refuses to arrest any felon in his bailiwick ; or 
 
 (c) Lets go at large a prisoner who is not bailable ; or 
 
 (d) Is guilty of an offence against or breach of the provisions of 
 this Act ; 
 
 He shall (without prejudice to any other punishment under the 
 provisions of this Act) be guilty of a misdemeanor, and be liable on 
 conviction to imprisonment for a term not exceeding one year and to 
 pay a fine, or, if he has not wherewith to pay a fine, to imprisonment 
 not exceeding three years. 
 
 (2) If any person being either a sheriff, under-sheriff, bailiff, or 
 officer of a sheriff, or being employed in levying or collecting debts 
 due to the Crown by process of any Court, or being an officer to 
 whom the return or execution of writs belongs, does any of the fol- 
 lowing things, that is to say — 
 
 (z) R. v. Holland, 5 T. R. 607. (a) 4 Blac. Com. 141. 1 Hnwk. P. C. 
 
 c. 68, s. 1. 
 
 American Note. 
 
 1 As to extortion in America, see Williams a man is doing a lawful tiling, and it is pre- 
 
 v S., 2 Sneed, 160 ; S. v. Brown, 12 Minn. sumed to be done lawfully ; but if a man 
 
 490 ; P. v. Rust, 1 Caines, 130 ; C. v. Bay- does an unlawful act it cannot be presumed 
 
 ley, 7 Pick. 279. There are many statutes that he does it lawfully. The presumption 
 
 in America which deal with this offence, is the other way. The English case of R. v. 
 
 Bishop, ii. s. 404. Borrett, 6 C. & P. 124, only decides that in 
 
 It seems that in America a person who a charge of stealing a post letter it is not 
 
 is not an officer, but who serves as such and necessary to produce the actual appointment, 
 
 claims to be such, is estopped from denying the words of the statute being "every person 
 
 his official appointment. Bishop, ii. s. 392, employed by or under the post-office," and 
 
 citing 1 Gab. Crim. Law, 783; S. v. Mcln- it is sufficient to prove that he acted under 
 
 tyre, 3 Ire. 171, 174 ; S. v. Sellers, 7 Rich, the post-office. There seem to be cases in 
 
 368, 372 ; P. v. Cook, 4 Seld. 67, 59 Am. D. America which are called "extortion " where 
 
 451. This is said to follow from the maxim the defendant cannot be called an officer at 
 
 " omnia presunmntur rite esse acta'" where all, see Bishop, ii. s. 392.
 
 424 Sheriffs. [book ii. 
 
 (o) Withholds a prisoner bailable after he has offered sufficient 
 security ; or 
 
 (b) Takes or demands any money or reward under any pretext 
 whatever other than the fees or sums allowed by or in pursuance 
 of this or any other Act ; or 
 
 (c) Grants a warrant for the execution of any writ before he has 
 actually received that writ ; or 
 
 (d) Is guilty of any offence against or breach of the provisions of 
 this Act, or of any wrongful act or neglect or default in the execution 
 of his office, or of any contempt of any superior court ; 
 
 He and any person procuring the commission of any such offence 
 shall, without prejudice to any other punishment under the provisions 
 of this Act, but subject as hereinafter mentioned, be liable 
 
 (i) To be punished by the Court as hereinafter mentioned, and 
 
 (ii) To forfeit two hundred pounds, and pay all damages suffered 
 by any person aggrieved. 
 
 And such forfeiture and damage may be recovered by such person 
 as a debt by an action in her Majesty's High Court of Justice. 
 
 (3) Any of the following courts, that is to say, her Majesty's High 
 Court of Justice, any Court of Assize, Oyer and Terminer or gaol de- 
 livery, or any judge of any of the said Courts, also where the alleged 
 offence has been committed in relation to any writ issued out of any 
 other Court of record than those above mentioned, the Court out of 
 which such writ issued may, on complaint made of any such offence 
 as aforesaid having been committed and on proof on oath given by the 
 examination of witnesses or by affidavit or on interrogatories of the 
 commission of the alleged offence, and after hearing anything which 
 the alleged offender may urge in his defence (which evidence and 
 hearing may be taken and had in a summary matter), punish the 
 offender or cause proceedings to be taken for his punishment in like 
 manner as a person guilty of contempt of the said Court may be 
 punished. 
 
 (4) The Court may order the costs of or occasioned by any such 
 complaint to be paid by either party to the other, and an order by the 
 High Court of Justice in any such summary proceeding to pay any 
 costs, damages, or penalty, shall be of the same effect as a judgment 
 of the High Court, and may be enforced accordingly. 
 
 (5) Any of the said Courts being a superior Court of record may 
 also proceed for and deal with such offence in like manner as for any 
 contempt of such Court. 
 
 (6) If any person not being an under-sheriff, bailiff, or officer of a 
 sheriff, assumes or pretends to act as such, or demands or takes any 
 fee or reward under colour or pretext of such office, he shall be liable 
 to be punished in manner provided by this section as if he were an 
 under-sheriff guilty of a contempt of Court. 
 
 (7) Any proceeding in pursuance of this section against a sheriff, 
 under-sheriff, or any other person to whom this section applies shall 
 be taken within two years after the alleged offence was committed, 
 and not subsequently, and if the proceeding is in a summary manner 
 shall be taken before the end of the sittings of the Court held next 
 after the offence was committed and not subsequently. 
 
 (8) Nothing in this section shall render a person liable to be pun-
 
 chap, xv.] Of Offences by Persons in Office. 425 
 
 ished twice in respect of the same offence, but if any proceeding is 
 taken against a person under this section for any offence the Court or 
 Judge may postpone or stay proceedings and direct any other avail- 
 able proceeding to be taken for punishing such offence.' 
 
 Justices of the peace. — Justices of the peace are bound by their 
 oath of office to take nothing for their office of justice of the peace to 
 be done, but of the King, and fees accustomed, and costs limited by 
 statute. And generally no public officer may take any other fees or 
 rewards for doing anything relating to his office than some statute in 
 force gives him, or such as have been anciently and accustomably 
 taken ; and if he do otherwise, he is guilty of extortion, (b) And it 
 should be observed, that all prescriptions which have been contrary to 
 the statute and to the common law, in affirmance of which it was 
 made, have been always holden to be void ; as where the clerk of the 
 market claimed certain fees as due time out of mind for the examina- 
 tion of weights and measures ; this was adjudged to be void, (c) 
 
 But the stated and known fees allowed by the courts of justice to 
 their respective officers, for their labour and trouble, are not restrained 
 by the common law, or by the statute of Westm. 1 , c. 26, and there- 
 fore such fees may be legally demanded and insisted upon without 
 any danger of extortion, (e) And it seems that an officer who takes 
 a reward, which is voluntarily given to him, and which has been usual 
 in certain cases, for the more diligent or expeditious performance of 
 his duty, cannot be said to be guilty of extortion ; for without such a 
 premium it would be impossible in many cases to have the laws exe- 
 cuted with vigour and success. (/ ) But it has been always holden, that 
 a promise to pay an officer money for the doing of a thing which the 
 law will not suffer him to take anything for is merely void, however 
 freely and voluntarily it may appear to have been made, (g) It has 
 been held to be extortion to oblige the executor of a will to prove it 
 in the Bishop's Court, and to take fees thereon, when the defendants 
 knew that it had been proved before in the Prerogative Court. (// ) 
 
 Other public officers. — It is extortion in a churchwarden to obtain 
 a silver cup or other valuable thing, by colour of his office, (i) And a 
 coroner is guilty of this offence, who refuses to take the view of a dead 
 body until his fees are paid, (j) So if an under-sheriff obtain his fees 
 by refusing to execute process till they are paid, (k) or take a bond for 
 
 (b) Dalt. c. 41. Burn's Just. tit. Extor- (h) Rex v. Loggen, 1 Str. 73. 
 tion. (i) Roy v. Eyres, 1 Sid. 307. 
 
 (c) 1 Hawk. P. C. c. 68, s. 2. Bac. Abr. (./) 3 Inst. 149. See 50 & 51 Vict. c. 71, 
 tit. Extortion. s. 8. 
 
 (c) 1 Hawk. P. C. c. 68, s. 3. 2 Inst. (k) Hestcott's case, 1 Salk. 330. The 
 
 210. Co. Lit. 368. Bac. Abr. tit. Extortion. Court said that the plaintiff might bring an 
 
 (/) Bac. Abr. tit. Extortion. 2 Inst. 210. action against him for not doing his duty, 
 
 3 Inst. 149. Co. Lit. 368. or might pay him his fees, and then indict. 
 
 (g) Bac. Abr. tit. Extortion. him for extortion. 1 
 
 American Note. 
 
 1 Demanding fees in advance has also setting up a custom to do so, see R. v. Han- 
 been held to be extortion in America. See C. num, 1 Yeates, 71; Lincoln v. Shaw, 17 
 v. Bagley, 7 Pick. 279; S. v. Maires, 4 Mass. 410 ; Shattuck v. Woods, 1 Pick. 171: 
 Vroom, 142; S. v. Vasel, 47 Mo. 416, but C. v. Shed, 1 Mass. 227 ; see also P. v. Cal- 
 see also Lane v. S., 20 Vroom, 673. As to houn, 3 Wend. 420. 
 taking a larger fee than the law allows, and
 
 42G Of Offences by Persons in Office. [book ii. 
 
 his fee before execution is sued out, (I) it will be extortion. And it 
 will be the same offence in a sheriff's officer to bargain for money to 
 be paid him by A. to accept A. and B. as bail for C, whom he has ar- 
 rested ; (m) or to arrest a man in order to obtam a release from him ; (n) 
 and also in a gaoler to obtain money from his prisoner by colour of 
 his office, (o) In the case of a miller, where the custom has ascertained 
 tin- loll, if the miller takes more than the custom warrants, it is ex- 
 tortion ; (p) and the same if & ferryman takes more than Iris due by 
 custom for the use of his ferry, (q) And it was held that if the farmer 
 of a market erects so many stalls, as not to leave sufficient room for the 
 market people to stand and sell their wares, so that for want of room 
 they are forced to hire the stalls of the farmer, the taking money 
 for the use of the stalls in such a case is extortion. (?•) Where a col- 
 lector of post-horse duty demanded a sum of money of a person, 
 charging him with having let out post-horses without paying the duty, 
 and threatened him with an Exchequer process, and he thereon gave 
 him a promissory note for five pounds, which was afterwards paid and 
 the proceeds handed over to the farmer of the post-horse duties, it was 
 held to be extortion, (s) The question of exemption from toll cannot 
 be tried by an indictment against a turnpike-keeper for extortion in 
 taking the toll, (t) By the 4 Geo. 4, c. 95, s. 50, no person who shall 
 take more toll than he is authorized to take, shall be prosecuted by 
 indictment for extortion, or otherwise. 
 
 Indian officers. — The 33 Geo. 3, c. 52, s. 62, enacts that the demand- 
 ing or receiving any sum of money, or other valuable thing, as a gift or 
 present, or under colour thereof, whether it be for the use of the party 
 receiving the same, or for or pretended to be for the use of the East 
 India Company, or of any other person whatsoever, by any British sub- 
 ject holding or exercising any office or employment under his Majesty, 
 or the Company in the East Indies, shall be deemed to be extortion and 
 a misdemeanor at law, and punished as such. The offender is also to 
 forfeit to the King the present so received, or its full value ; but the 
 Court may order such present to be restored to the party who gave it, 
 or may order it, or any part of it, or of any fine which they shall set 
 upon the offender, to be paid to the prosecutor or informer. 
 
 An information filed by the Attorney-General charged that the de- 
 fendant, a British subject, held for a long time an office in the East 
 Indies under the East India Company, viz., the office of resident at 
 Tanjore, and during all that time resided in the East Indies, and that 
 whilst he held the said office, and within six years before the filing of 
 the information, in the East Indies, he did unlawfully receive from a 
 certain person in the East Indies a sum of money, viz., 2,000 rupees, 
 of the value of 200/. of lawful money of Great Britain, as a gift and 
 present, against the statute ; whereby he was guilty of extortion and 
 a misdemeanor, and by force of the statute had forfeited the sum of 
 
 (l) Empson v. Batlmrst, Hutt. 52, (o) R. v. Broughton, Trem. P. C. 111. 
 
 where it is said that an obligation made by Stark. 588. 
 
 extortion is against common law, for it is as (/)) R. v. Burdett, 1 Lord Raym. 149. 
 
 robbery; and that the sheriff's fee is not due (q) R. v. Roberts, 4 Mod. 101. 
 
 until execution. (r) R. v. Burdett, 1 Lord Ravin. 149. 
 
 (m) Stotesbury v. Smith, 2 Burr. 924. (s) R. v. Higgins, 4 C. & P. 247. 
 
 (h) Williams v. Lyons, 8 Mod. 189. Vaughan, B. 
 
 (t) R. v. Hamlyn, 4 Campb. 379.
 
 chap, xv.] Of Oj/'ences by Persons in Ojjicc. 427 
 
 200/., the value of the said rupees ; and the Court of Queen's Bench 
 held that it was no ground to arrest the judgment that the count did 
 not state whether the rupees were Bombay, Madras, or Sicca rupees, or 
 state the value of a single rupee ; and that Court and the Court of Ex- 
 chequer Chamber held that the count was good, although it did not 
 aver that the gift was received by way of extortion or under colour of 
 the office : first, because, supposing the statute were confined to such 
 cases, the information was good after verdict by the 7 Geo. 4, c. 64, s. 21, 
 as it described the offence in the words of the statute creating it ; and 
 secondly, because the 33 Geo. 3, c. 52, extended to any receipt of a gift 
 by any officer ; for the object of the Legislature was to prevent any 
 officer from receiving any gift or present of money in the East Inches 
 absolutely, whatever the reason of the gift might be ; and, although 
 the count did not allege for whose use or pretended use the gift was 
 received ; for even if an officer received a present under colour of its 
 being a present to the Queen, he would be guilty of an offence within 
 the statute, (u) 
 
 Indictment. — Two persons may be indicted jointly for extortion 
 where no fee was due ; and there are no accessories in this offence. 
 Upon an indictment against the chancellor and the registrar of a 
 bishop, it was objected that the offices of the defendants were distinct, 
 that what might be extortion in one might not be so in the other, and 
 that therefore the indictment ought not to be joint. But by Parker, 
 C. J., ' this would be an exception if they were indicted for taking more 
 than they ought ; but it is only against them for contriving to get 
 money where none is due : and this is an entire charge. For there are 
 no accessories in extortion : but he that is assisting is as guilty as the 
 extortioner, as he that is party to a riot is answerable for the acts of 
 others.' (v) And an indictment against three averring that they, colore 
 officiorum suorum, took so much, is good, for they might take so much 
 
 (u) R. v. Douglas, 13 Q. B. 42. The jury tion ; 3rdly, that imprisonment in default of 
 had found a verdict , ? on several counts, char- paying the forfeiture was rightly awarded, 
 ging receipts of sums in rupees as gifts, after as that forfeiture was not arbitrarily imposed 
 which followed a finding as to each count by the Court, but fixed by the statute, and 
 severally that the sum received, as in the superadded, by authority of the statute, to 
 count mentioned, was the sum of so many the other punishments of the offence. The 
 rupees, which sum of rupees, at the time of Court of Queen's Bench held that the altera- 
 receiving them, was of the value of so much tions in the Madras Courts made by several 
 British money, being at the rate of Is. Wrt. statutes did not preclude the issuing of a 
 per rupee, and the Court of Queen's Bench mandamus under the 13 Geo. 3, c. 63, s. 40, 
 adjudged fine and imprisonment separately to examine witnesses, to the Madras Court 
 upon each count upon which the defendant as finally constituted, and that such a man- 
 was convicted ; and further, that the de- damns directed to the Chief Justice and 
 fendant, in pursuance of the statute, do also other judges, who were two, of the Madras 
 forfeit to the Queen the several sums follow- Supreme Court, requiring them to hold a 
 ing (naming the value of the sums in rupees, Court and examine witnesses, was well exe- 
 as found on each count respectively), the cuted by the Chief Justice and one other 
 said forfeitures amounting together to the judge See also this case as to what parch- 
 sum of (the aggregate of the values) ; and ment writings are such examinations as are 
 further, that the defendant be imprisoned required by the Act to be returned to such a 
 until he shall have paid the said fines and mandamus". 
 
 forfeitures. And the Court of Exchequer (v) R. v. Loggen, 1 Str. 75. Quccre, 
 
 Chamber held, 1st, that this judgment was whether this was not an indictment for a 
 
 good, although it did not give the defendant conspiracy to defraud, and not for extortion, 
 
 the option of forfeiting the gifts actually re- But as to the rule, that several persons may 
 
 ceived, as the gift itself was money ; 2ndly, be jointly indicted for extortion, see R. v. 
 
 that it was right to estimate the value at the Atkinson, Lord Raym. 1248. 1 Salk. 382. 
 time of the receipt, and not of the convic-
 
 428 Refusing to Execute Office. [book ii. 
 
 in gross, and afterwards divide it amongst them, of which the party 
 grieved could have no notice, (w) 
 
 It is said, that an indictment for extortion may be laid in any 
 county by the 31 Eliz. c. 5, s. 4; (x) but this position has been ques- 
 tioned. (//) It may be tried and determined by justices of the peace at 
 their sessions by virtue of the term ' extortions ' in their commission, (z) 
 A count for extortion ought to charge a single offence only ; because 
 every extortion from every particular person is a separate and distinct 
 offence, and each offence requires a separate and distinct punishment, 
 and therefore a count charging the defendant with extorting divers 
 sums exceeding the ancient rate for ferrying men and cattle over a 
 river is bad. (a) The indictment must state a sum which the de- 
 fendant received : but it is not material to prove the exact sum as 
 laid in the indictment ; so that if a man be indicted for taking ex- 
 tortionately twenty shillings, and there be proof of but one shilling, it 
 will be sufficient, (b) An indictment for extortion, where nothing was 
 due, ought to state that nothing was due ; (c) and if it be for taking 
 more than was due, it ought to show how much was due. (d) And the 
 extortionate agreement is not the offence, but the taking ; for a par- 
 don after the agreement, and before the taking, does not pardon the 
 extortion, (c) 
 
 Punishment. — The offence of extortion is punishable at common 
 law by fine and imprisonment ; and also by a removal from the office 
 in the execution of which it was committed ; (/) and there is a further 
 additional punishment by the statute of Westm. 1, c. 26, by which it 
 is enacted, ' that no sheriff nor other King's officer shali take any 
 reward to do his office, but shall be paid of that which they take of 
 the King ; and that he who so doth shall yield twice as much, and 
 shall be punished at the King's pleasure.' (g) And an action lies to 
 recover this double value, (h) 
 
 Refusal to serve an office. — It is an offence at common law to 
 refuse to serve an office when duly elected, (i) And the refusal of 
 persons to execute ministerial offices to which they are duly appointed, 
 and from the execution of which they have no proper ground of ex- 
 emption, seems in general to be punishable by indictment. 1 
 
 Constables. — Thus it has been held to be indictable for a constable, 
 after he has been duly chosen, to refuse to execute the office, ( j) or to 
 
 (w) Lake's case, 3 Leon. 268. Com. Dig. {d) Ibid, 
 
 tit. Extortion. (c) By Holt, C. J., in R. v. Burdett, 1 
 
 (x) 1 Hawk. P. C. c. 68, s. 6, note (3) ; Lord Raym. 149. 
 
 Burn's Just. tit. Extortion; Stark. Crim. (f) 1 Hawk. P. C. c. 68, s. 5. Bac. Abr. 
 
 Plead. 385, note (k). tit. Extortion. 
 
 {y) 2 Hawk. P. C. c. 26, s. 50 ; 2 Chit. (g) By the 'king's pleasure' is meant 
 
 Crim. Law, 294, in the note. by the king's justices before whom the cause 
 
 (z) R. v. Loggen, 1 Str. 75. depends, and at their discretion, 2 Inst. 210. 
 
 (a) R. v. Roberts, Carth. 226. (7i) Com. Dig. 323, tit. Extortion (C). 
 
 (b) R. v. Burdett, 1 Lord Raym. 149; (i) R. v. Bower, 1 B. & C. 587. 
 
 and see R. v. Gillham, 6 T. R. 267. (./) R. v. Lowe, 2 Str. 92. R. V. Chappie, 
 
 (c) Lake's case, 3 Leon. 268. Com. Dig. 3 Campb. 91. R. v. Genge, Cowp. 13. E. 
 tit. Extortion. v. Gierke, 1 Keb. 393. By the Parish Con- 
 
 Ameiucan Note. 
 
 1 In America the refusal to serve an office Cal. 26. There are statutes making the 
 has been held effectual without the consent refusal to serve penal. See London v. Heden, 
 of the appointing power. P. v. Porter, 6 76 N. C. 72.
 
 chap, xv.] Of Offences by Persons in Office. 429 
 
 refuse to take the oath for that purpose, (k) But a person is not liable 
 to serve the office of constable unless he be resident in the parish. 
 Where, therefore, a person occupied a house, and paid all parish rates 
 in respect of it, and carried on the trade of a printer, frequenting the 
 house daily on all working days, and sometimes remaining there dur- 
 ing the night at work, but not sleeping in the house, it was held that 
 he was not liable to serve the office of constable in the parish where 
 the house was situated, if) But where a person occupied a warehouse 
 in M., and usually slept at a lodging-house in M. from Monday till 
 Saturday, when he returned to his mother's in H., where he also had 
 premises, and he did suit and service to the court-leet of H., the Court 
 thought that he was liable to be appointed a constable of M. (m) 
 
 It is sufficient, in an indictment for refusing to execute the office of 
 constable, to state that the defendant unlawfully, &c, ' did neglect and 
 refuse to take upon himself the execution of the said office ; ' and it is 
 not necessary to state that he refused to be sworn, (n) Upon such an 
 indictment, proof that he refused to be sworn is sufficient prima facie 
 evidence of a refusal to take the office ; but if it were proved that, 
 although not sworn, he had acted as constable, the refusal to take the 
 oath would not prove that he refused to take the office, (n) 
 
 Where there is a special custom of swearing-in constables, as in 
 the City of London, it is unnecessary to set such custom out in the 
 indictment, (n) 
 
 Overseers of the poor. — A person is indictable for refusing to take 
 upon himself the office of overseer of the poor, (o) For though the 
 43 Eliz. c. 2, says only that certain persons therein described shall be 
 overseers, and gives no express indictment for a refusal of the office, 
 yet upon the principles of common law, which are that every man 
 shall be indicted for disobeying a statute, the refusal to serve when 
 duly appointed is indictable, (p) But there should be previous notice 
 of the appointment, and the indictment should show that the defend- 
 ant was bound to undertake the office by setting forth how he was 
 elected, (q) And if an indictment for refusing to serve the office of 
 constable on being thereto chosen by a corporation do not set forth 
 the prescription of the corporation so to choose, it is bad ; for a cor- 
 poration has no power of common right to choose a constable, (r) 
 
 An indictment for refusing to execute an office must aver that the 
 party had notice of the appointment, (s) 
 
 stables Act, 1872, 35 & 36 Vict. c. 92, after (q) R. v. Harpur, 5 Mod. 96. In R. v. 
 
 the 24 March, 1873, no parish constable Burder, 4 T. R. 778, it was held that an 
 
 shall be appointed except as therein provided, appointment of an overseer of the poor for 
 
 (k) R. v. Harpur, 5 Mod. 96. Fletcher the year next ensuing must be understood to 
 
 v. Ingram, 5 Mod. L27. be for the overseer's year ; and an indictment, 
 
 (I) R. v. Adlard, 4 B. & C. 772, 7 D. & stating that the defendant was appointed 
 
 R. 340. See Donne v. Martyr, 8 B. & C. 62. ' overseer of the poor of the parish of A.' and 
 
 (ra) R. v. Mosley, 3 A. & E. 488 ; 5 N. & that he afterwards refused ' to take the said 
 
 M. 261. See this case as to what is an ex- office of overseer of the parish to which 
 
 cessive fine for refusing to serve the office. he was so appointed,' was held good on 
 
 (n) R. v. Brain, 3 B. & Ad. 614. demurrer. 
 
 (o) R. v. Jones, 2 Str. 1145; S. C, 7 (r) R. v. Bernard, 2 Salk. 52. 1 Lord 
 
 Mod. 410. 1 Bott. 360, pi. 377- R. v. Raym. 94. 
 
 Poynder, 1 B. & C. 178 ; , S. C, 2 D. & R. (s) R. v. Fearnley, 1 T. R. 316. R. v. 
 
 258. R. v. Hall, 1 B. & C. 123 ; S. C, 2 D. White, Cald. 183. R. v. Winship, Cald. 72. 
 
 & R. 241. R. v. Kingston, 8 East, 41. 
 
 (p) R. v. Jones, 1 Bott. supra.
 
 430 Disclosing Official Secrets. [book ii. 
 
 Disclosing official secrets. — By the Official Secrets Act, 1889, 52 & 
 53 Vict. c. 52, {t) — 
 
 (1.) a. 'Where a person for the purpose of wrongfully obtaining 
 information — 
 
 (i.) enters or is in any part of a place belonging to her Majesty 
 the Queen, being a fortress, arsenal, factory, dockyard, camp, 
 ship, office, or other like place, in which part he is not en- 
 titled to be ; or 
 (ii.) when lawfully or unlawfully in any such place as afore- 
 said, either obtains any document, sketch, plan, model, or 
 knowledge of anything which he is not entitled to obtain, or 
 takes without lawful authority any sketch or plan ; or 
 (hi.) when outside any fortress, arsenal, factory, dockyard, or 
 camp belonging to her Majesty the Queen, takes or attempts 
 to take without authority given by or on behalf of her 
 Majesty, any sketch or plan of that fortress, arsenal, factory, 
 dockyard, or camp ; or 
 h. where a person knowingly having possession of, or control 
 over, any such document, sketch, plan, model, or knowledge 
 as has been obtained or taken by means of any act which 
 constitutes an offence against this Act at any time wilfully 
 and without lawful authority communicates or attempts to 
 communicate the same to any person to whom the same ought 
 not, in the interest of the State, to be communicated at that 
 time ; or 
 c. where a person after having been entrusted in confidence by 
 some officer under her Majesty the Queen with any document, 
 sketch, plan, model, or information relating to any such place 
 as aforesaid, or to the naval or military affairs of her Majesty, 
 wilfully and in breach of such confidence communicates the 
 same when, in the interest of the State, it ought not to be 
 communicated ; 
 he shall be guilty of a misdemeanor, and on conviction be liable to 
 imprisonment, with or without hard labour, for a term not exceeding 
 one year, or to a fine, or to both imprisonment and a fine. 
 
 (2.) Where a person having possession of any document, sketch, 
 plan, model, or information relating to any fortress, arsenal, factory, 
 dockyard, camp, ship, office, or other like place belonging to her 
 Majesty, or to the naval or military affairs of her Majesty, in whatever 
 manner the same has been obtained or taken, at any time wilfully 
 communicates the same to any person to whom he knows the same 
 ought not, in the interest of the State, to be communicated at that 
 time, he shall be guilty of a misdemeanor, and be liable to the same 
 punishment as if he committed an offence under the foregoing pro- 
 visions of this section. 
 
 (3.) Where a person commits any act declared by this section to be 
 a misdemeanor, he shall, if he intended to communicate to a foreign 
 State any information, document, sketch, plan, model, or knowledge 
 obtained or taken by him, or entrusted to him as aforesaid, or if he 
 communicates the same to any agent of a foreign State, be guilty of 
 felony, and on conviction be liable at the discretion of the Court to- 
 
 (0 See R. v. Guernsey, 1 F. & F. 394.
 
 chap, xv.] Of Offences by Persons in Office. 431 
 
 penal servitude for life, or for any term not less than five years, (u) or 
 to imprisonment for any term not exceeding two years, with or without 
 hard labour.' 
 
 By Sec. 2. (1.) 'Where a person by means of his holding or having 
 held an office under her Majesty the Queen, has lawfully or unlawfully 
 either obtained possession of or control over any document, sketch. 
 plan, or model, or acquired any information, or at any time corruptly 
 or contrary to his official duty communicates or attempts to com- 
 municate that document, sketch, plan, model, or information to any 
 person to whom the same ought not, in the interests of the State, or 
 otherwise in the public interest, to be communicated at that time, he 
 shall be guilty of a breach of official trust. 
 
 (2.) A person guilty of a breach of official trust shall — 
 
 a. if the communication was made or attempted to be made to a 
 foreign State, be guilty of felony, and on conviction be liable at the 
 discretion of the court to penal servitude for life, or for any term not 
 less than five years, (v) or to imprisonment for any term not exceed- 
 ing two years, with or without hard labour ; and 
 
 b. in any other case be guilty of a misdemeanor, and on convic- 
 tion be liable to imprisonment, with or without hard labour, for a 
 term not exceeding one year, or to a fine, or to both imprisonment 
 and a fine. 
 
 (3.) This section shall apply to a person holding a contract with 
 any department of the government of the United Kingdom, or with 
 the holder of any office under her Majesty the Queen as such holder, 
 where such contract involves an obligation of secrecy, and to any per- 
 son employed by any person or body of persons holding such a con- 
 tract, who is under a like obligation of secrecy, as if the person holding 
 the contract and the person so employed were respectively holders of 
 an office under her Majesty the Queen.' 
 
 By Sec. 3. ' Any person who incites or counsels, or attempts to 
 procure, another person to commit an offence under this Act, shall be 
 guilty of a misdemeanor, and on conviction be liable to the same 
 punishment as if he had committed the offence.' 
 
 By Sec. 4. ' The expenses of the prosecution of a misdemeanor under 
 this Act shall be defrayed in like manner as in the case of a felony.' 
 
 By Sec. 5. 'If by any law made before or after the passing of this 
 Act by the legislature of any British possession provisions are made 
 which appear to her Majesty the Queen to be of the like effect as those 
 contained in this Act, her Majesty may, by Order in Council, suspend 
 the operation within such British possession of this Act, or of any 
 part thereof, so long as such law continues in force there, and no 
 longer, and such order shall have effect as if it were enacted in this 
 Act: 
 
 Provided that the suspension of this Act, or of any part thereof, in 
 any British possession shall not extend to the holder of an office under 
 her Majesty the Queen who is not appointed to that office by the 
 Government of that possession. 
 
 The expression " British possession " means any part of her Majesty's 
 dominions not within the United Kingdom.' 
 
 {re) Now three years; see 54 & 55 Vict. (v) Now three years ; see 54 & 55 Vict, 
 
 c. 69. c. 69.
 
 432 Disclosing Official Secrets. [book ii. 
 
 By Sec. fi. (1.) ' This Act shall apply to all acts made offences by 
 this Act when committed in any part of her Majesty's dominions, or 
 when committed by British officers or subjects elsewhere. 
 
 (2.) An offence under this Act, if alleged to have been committed 
 out of the United Kingdom, may be inquired of, heard, and determined, 
 in any competent British court in the place where the offence was 
 committed, "or in her Majesty's High Court of Justice in England or 
 thf ( 'entral Criminal Court, and the Act of the forty-second year of 
 the reign of King George the Third, chapter eighty-five, shall apply in 
 like manner as if the offence were mentioned in that Act, and the 
 Central Criminal Court as well as the High Court possessed the juris- 
 diction given by that Act to the Court of King's Bench. 
 
 (3.) An offence under this Act shall not be tried by any court of 
 general or quarter sessions, nor by the sheriff court in Scotland, nor 
 by any court out of the United Kingdom which has not jurisdiction 
 to try crimes which involve the greatest punishment allowed by 
 law.' 
 
 By Sec. 7. (1.) 'A prosecution for an offence against this Act shall 
 not be instituted except by or with the consent of the Attorney- 
 General. 
 
 (2.) In this section the expression 'Attorney-General' means the 
 Attorney or Solicitor General for England ; and as respects Scotland, 
 means the Lord Advocate ; and as respects Ireland, means the Attor- 
 ney or Solicitor General for Ireland ; and if the prosecution is instituted 
 in any court out of the United Kingdom, means the person who in 
 that court is Attorney-General, or exercises the like functions as the 
 Attorney-General in England.' 
 
 By Sec. 8. ' In this Act, unless the context otherwise requires — 
 
 Any reference to a place belonging to her Majesty the Queen 
 includes a place belonging to any department of the Government of 
 the United Kingdom or of any of her Majesty's possessions, whether 
 the place is or is not actually vested in her Majesty ; 
 
 Expressions referring to communications include any communica- 
 tion, whether in whole or in part, and whether the document, sketch, 
 plan, model, or information itself or the substance or effect thereof 
 only be communicated ; 
 
 The expression ' document ' includes part of a document ; 
 
 The expression ' model ' includes design, pattern, and specimen ; 
 
 The expression ' sketch ' includes any photograph or other mode of 
 representation of any place or thing ; 
 
 The expression ' office under her Majesty the Queen,' includes any 
 office or employment in or under any department of the Government 
 of the United Kingdom, and so far as regards any document, sketch, 
 plan, model, or information relating to the naval or military affairs of 
 her Majesty, includes any office or employment in or under any de- 
 partment of the Government of any of her Majesty's possessions.' 
 
 By Sec. 9. This Act shall not exempt any person from any pro- 
 ceeding for an offence which is punishable at common law, or by 
 military or naval law, or under any Act of Parliament other than this 
 Act, so, however, that no person be punished twice for the same 
 offence.'
 
 CHAPTER THE SIXTEENTH. 
 
 OF BUYING AND SELLING OFFICES. 
 
 Concekning the sale of offices of a public nature, it has been well 
 observed, that nothing can be more palpably prejudicial to the good of 
 the public, than to have places of the highest concernment, on the 
 due execution whereof the happiness of both king and people depends, 
 disposed of, not to those who are most able to execute them, but to 
 those who are most able to pay for them ; nor can anything be a 
 greater discouragement to industry and virtue than to see those places 
 of trust and honour, which ought to be the rewards of persons who 
 by their industry and diligence have qualified themselves for them, 
 conferred on those who have no other recommendation than that of 
 being the highest bidders ; neither can anything be a greater tempta- 
 tion to officers to abuse their power by bribery and extortion, and 
 other acts of injustice, than the consideration of having been at a 
 great expense in gaining their places, and the necessity of sometimes 
 straining a point to make their bargain answer their expectations, (a) 
 
 The buying and selling such offices has therefore been considered 
 an offence malum in se, and indictable at common law. (b) In a case 
 of an indictment for a conspiracy to obtain money, by procuring from 
 the lords of the Treasury the appointment of a person to an office in 
 the customs, it was proposed to argue that the indictment was bad on 
 the face of it, as it was not a misdemeanor at common law to sell 
 or to purchase an office like that of coast-waiter. But Lord Ellen- 
 borough, 0. J., said that if that were to be made a question, it must 
 be debated on a motion in arrest of judgment, or on a writ of error ; 
 but that, after reading the case of E. v. Vaughan, (c) it would be 
 very difficult to argue that the offence charged in the indictment 
 was not a misdemeanor. And Grose, J., afterwards, in passing sen- 
 tence, said that there could be no doubt but that the offence charged 
 was clearly a misdemeanor at common law. (d) 
 
 The case of B. v. Vaughan was an attempt only to bribe a cabinet 
 minister and a member of the Privy Council to give the defendant 
 an office in the colonies, (e) And where the defendant, who was 
 clerk to the agent for the French prisoners of war at Porchester 
 Castle, took bribes in order to procure the exchange of some of them 
 out of their turn, it appears to have been made the subject of an 
 indictment. (/) 
 
 (a) 1 Hawk. P. C. c. 67, s. 3. Bac. Abr. was granted against the defendant for offering 
 
 tit. Offices and Officers. the Duke of Grafton, then First Lord of the 
 
 (6) Stockwell v. North, Noy, 102, Moor, Treasury, the sum of £5,000 as a bribe to 
 
 781, S. C. procure the reversion of the office of clerk of 
 
 (f) 4 Burr. 2494. the Supreme Court of the island of Jamaica. 
 
 (d) R. v. Pollman, 2 Campb. 229. (/) R. v. Beale, cited in R. v. Gibbs, 1 
 
 (e) 4 Burr. 2494. A criminal information East, R. 183. 
 vol. i. — 28
 
 434 Of Buying and Selling Offices. [book ii. 
 
 But it has been endeavoured to prevent the mischiefs of buying and 
 selling offices, by several statutes. 
 
 The 12 Rich. 2, c. 2, enacted, ' that the chancellor, treasurer, keeper 
 of the privy seal, steward of the King's house, the King's chamberlain, 
 clerk of the rolls, the justices of the one bench and of the other, barons 
 of the Exchequer, and all other that shall be called to ordain, name, or 
 make, justices of the peace, sheriffs, escheaters, customers, comptrol- 
 lers, or any other officer or minister of the King, shall be firmly sworn 
 that they shall not ordain, name, or make, any of the above-mentioned 
 officers for any gift or brokage, favour or affection ; nor that none which 
 pursueth by himself, or by other, privily or openly, to be in any manner 
 of office, shall be put into the same office, or in any other, but that 
 they make all such officers and ministers of the best and most lawful 
 men, and sufficient to their estimation and knowledge.' (g) 
 
 The 50 & 51 Vict. c. 55, s. 19, provides that 'a sheriff shall not 
 let to farm his county or any part thereof.' (h) 
 
 But a principal statute relating to this subject is the 5 & 6 Edw. 6, 
 c. 16, (i) which, for the avoiding corruption which might thereafter 
 happen in the officers, in places wherein there is requisite to be 
 had the true administration of justice or services of trust, and to 
 the intent that persons worthy and meet to be advanced should there- 
 after be preferred, enacts, that if any person bargain or sell any office, 
 or deputation of office, or take any money or profit directly or indi- 
 rectly, or any promise, &c, bond, or any assurance to receive any 
 money, &c, for any office or deputation of office, or to the intent that 
 any person should have, exercise, or enjoy any office or the deputation 
 of any office, which office, or any part or parcel thereof, shall in any- 
 wise concern the administration or execution of justice, or the receipt, 
 controlment, or payment of the King's treasure, rent, revenue, &c, or 
 any the King's customs, or the keeping the King's towns, castles, &c, 
 used for defence, or which shall concern any clerkship in any court of 
 record where justice is ministered ; the offender shall not only forfeit 
 all his right to such office or deputation of office, but also shall be ad- 
 judged a person disabled to have, occupy, or enjoy such office or depu- 
 tation. The statute further enacts, that such bargains, sales, bonds, 
 agreements, &c, shall be void ; (j) and provides that the Act shall not 
 extend to any office whereof any person shall be seised of any estate 
 of inheritance, nor to any office of the keeping of any park, house, 
 manor, garden, chase, or forest, (k) It provides also that all judgments 
 given or things done by offenders, after the offence and before the of- 
 fender shall be removed from the exercise of the office or deputation, 
 shall be good and sufficient in law. 
 
 (g) For the exposition of this statute, see valuable consideration whatever for any such 
 
 the Earl of Macclesfield's trial, 6 Sta. Tri. office or place.' Any person acting in contra- 
 
 477 : 16 Howells Sta. Tri. 767. vention of the section not being an under 
 
 (h) By s. 27. ' A person shall not directly sheriff, deputy sheriff, bailiff, or sheriff's 
 
 or indirectly by himself or by any person in officer is to be punished as if he were such. 
 
 trust for him or for his use buy, sell, let, or As to the punishment, sees. 29, ante, p. 423. 
 take to farm the office of under-sheriff, (/) Repealed, 'so far as regards the 
 
 deputy sheriff, bailiff, or any other office or revenue of customs, or offices in tlie service 
 
 place appertaining to the office of sheriff, nor of the customs,' by 6 Geo. 4, c. 105, s. 10. 
 contract for promise or grant for any valu- (j) Sec. 3. 
 
 able consideration whatever any such office (k) Sec. 4. 
 
 or place, nor give promise or receive any
 
 chap, xvi.] Of Buying and Selling Ojjicca. 435 
 
 It has been held that the offices of chancellor, registrar, and com- 
 missary in ecclesiastical courts, are within the meaning of this stat- 
 ute ; (I) also the place of cofferer, (m) and that of surveyor of the 
 customs ; (w) and the place of customer of a port ; (u) and the offices 
 of collector and supervisor of the excise ; (p) and in a writ of error 
 on a judgment in Ireland it was held that the offices of clerk of 
 the crown, and clerk of the peace, were within the statute. (//) But 
 offices in fee have been held to be out of the statute ; (r) and the 
 sale of a bailiwick of a hundred is not within it, for such an office 
 does not concern the administration of justice, nor is it an office 
 of trust, (.s) And for the like reason the office of clerk to the deputy 
 registrar in the prerogative Court of Canterbury is not within the 
 Act. (t) It has also been adjudged that a seat in the six clerks' 
 office is not within the statute, being a ministerial office only ; (u) and 
 it was held that it did not extend to military officers, (v) nor to the 
 purser of a ship, (w) but this last decision was doubted ; (x) and in a 
 later case it was said by Lord Mansfield, that if the Lords of the Ad- 
 miralty were to take money for their warrant to appoint a person to 
 be a purser, it would be criminal in the corruptor and corrupted {y) 
 It was decided also that this statute did not extend to the planta- 
 tions, (z) But with respect to military and naval commissions, and 
 the different places in the public departments of government, the col- 
 onies or plantations, or in the appointment of the East India Com- 
 pany, alterations have been made by statute, which will be presently 
 mentioned. 
 
 One who makes a contract for an office contrary to the purport 
 of this statute, is so far disabled to hold the same, that he cannot at 
 any time during his life be restored to a capacity of holding it by any 
 grant or dispensation whatever, (a) 
 
 With regard to the deputation of an office, it is held that where an 
 office is within the statute, and the salary is certain, if the principal 
 make a deputation reserving a less sum out of the salary, it is good ; so, 
 if the profits be uncertain, arising from fees, if the principal make a depu- 
 tation reserving a certain sum out of the fees and profits of the office, it 
 is good : for in these cases the deputy is not to pay unless the profits 
 arise to so much ; and though a deputy by his constitution is in place 
 
 (/) 12 Co. 78. 3 Inst. 148. Cro. Jae. (u) Sparrow v. Reynold, Pasch, 26 Car. 
 
 269. 1 Hawk. P. C. c. 67, s. 4. 2, C. B. Bac. Abr. Offices and Officers (¥.). 
 
 (m) Sir Arthur Ingram's case, 3 Bulst. 91. (v) 1 Vera. 98. 
 
 S. C, Co. Lit. 234, where it is said that the \ w ) 2 Vera. 308. Ca. temp. Talb. 40. 
 
 king could not dispense with this statute by (x) See 1 H. Blac. 326, where it is said 
 
 any non obstante; and Cro. Jac. 385, S. C. by Lord Loughborough, C. J., that the case 
 
 is cited. in 2 Vera, is contrary to an evident prin- 
 
 {n.) 2 And. 55, 107. ciple of law. 
 
 (o) 1 H. Blac. 327. (y) Purely v. Stacv, 5 Burr. 2698. 
 
 (p) Law v. Law, Cas. temp. Talb. 140. (z) Blankard v. Galdv, 4 Mod. 222. 2 
 
 3 P. Wins. 391, S. C. Salk. 411. 2 Lord Ray m. 1245, S. C. cited, 
 
 (q) Macarty v. Wickford, Trim 9 Geo. 2 Mod. 45. S. P. undetermined ; and see 
 
 2, B. R. Bac. Abr. Offices and Officers (F.). Bac. Abr. Offices and Officers (¥.). But if 
 
 It was also held in this case, that the statute the office, though in the plantations, had 
 
 did not extend to Ireland. But see post, 49 been granted under the great seal of England. 
 
 Geo. 3, c. 126. the sale of it would have been held criminal 
 
 (r) Ellis v. Ruddle, 2 Lev. 151. at common law. See the judgment of Lord 
 
 (s) Godbolt's case, 4 Leon. 33. 4 Mod. Mansfield in R. v. Vaughan, 4 Burr. 2500. 
 223, S. C. cited. (a) Hob. 75. Co. Lit. 234. Cro. Car. 361 
 
 (t) Aston v. Gwinnell, 3 Y. & J. 136. Cro. Jac. 386. Ca. temp. Talb. 107.
 
 436 Of Buying and Selling Offices. [book II. 
 
 of his principal, yet he has no right to his fees, they still continuing to 
 be the principal's ; so that, as to him, it is only reserving a part of his 
 own, and giving away the rest to another. But where the reservation 
 or agreement is not to pay out of the profits, but to pay generally a cer- 
 tain sum, it must be paid at all events ; and a bond for performance of 
 such agreement is vend by the statute, (b) 
 
 But this statute has been much extended by the 49 Geo. 3, c. 126, 
 which, after reciting it, enacts, ' that all the provisions therein con- 
 tained shall extend to Scotland and Ireland, and to all offices in the 
 gift of the crown, or of any office appointed by the crown ; and all 
 commissions, civil, naval, or military ; and to all places and employ- 
 ments, and to all deputations to any such offices, commissions, places, 
 or employments, in the respective departments or offices, or under the 
 appointment or superintendence and control of the lord high treasurer, 
 or commissioners of the Treasury, the secretary of state, the lords 
 commissioners for executing the office of lord high admiral, [the master- 
 general and principal officers of his Majesty's ordnance, (c)] the com- 
 mander-in-chief [the secretary at war, the paymaster-general of his 
 Majesty's forces, the commissioners for the affairs of India, the com- 
 missioners of the excise, the treasurer of the navy, the commissioners 
 of the navy, the commissioners for victualling, the commissioners of 
 transport, the commissary-general, the store-keeper general, (c)] and 
 also the principal officers of any other public department or office of 
 his Majesty's government in any part of the United Kingdom, or in 
 any of his Majesty's dominions, colonies, or plantations, which now 
 belong or may hereafter belong to his Majesty ; and also to all offices, 
 commissions, places, and employments belonging to or under the ap- 
 pointment or control of the East India Company, (d) in as full and 
 ample a manner as if the provisions of the said Act were repeated, and 
 made part of this Act ; and the said Act and this Act shall be con- 
 strued as one Act, as if the same had been herein repeated and re- 
 enacted.' 
 
 Sec. 3. ' If any person or persons shall sell, or bargain for the sale 
 of, or receive, have, or take any money, fee, gratuity, loan of money, 
 reward, or profit, directly or indirectly, or any promise, agreement, 
 covenant, contract, bond or assurance ; or shall by any way, device, or 
 means, contract or agree to receive or have any money, fee, gratuity, 
 loan of money, reward or profit, directly or indirectly ; and also if any 
 person or persons shall purchase, or bargain for the purchase of, or 
 give or pay any money, fee, gratuity, loan of money, reward or profit, or 
 make or enter into any promise, agreement, covenant, contract, bond, 
 or assurance to give or pay any money, fee, gratuity, loan of money, 
 reward or profit ; or shall by any ways, means, or device, contract or 
 agree to give or pay any money, fee, gratuity, loan of money, reward, or 
 profit, directly or indirectly, for any office, commission, place or em- 
 
 (b) Bac. Abr. Offices and Officers (F. ). tract, for the giving up or obtaining, or in 
 1 Hawk. P. C. c. 67, s. 5. Salk. 468. 6 Mod. any other manner touching or concerning 
 234. Godolphin v. Tudor, Comb. 356, S. P. the trust and duty of any office or employ - 
 
 (c) The parts within brackets are re- ment under the crown, or the East India 
 pealed by 35 & 36 Vict. c. 97. Company, by any British subject there resi- 
 
 (d) By the 33 Geo. 3, c. 52, s. 66, it was dent, should be deemed a misdemeanor. See 
 enacted that the making or entering into or 21 & 22 Vict. c. 106, the Act for transferring 
 being a party to any corrupt bargain or con- the government of India to her Majesty.
 
 cnAr xvi.] Of Buying and Selling Offices. 437 
 
 ployment, specified or described in the said recited Act (5 & 6 Edw. 6, 
 c. 16), or this Act, or within the true intent or meaning of the said Act, 
 or this Act, or for any deputation thereto, or for any part, parcel, or 
 participation of the profits thereof, or for any appointment or nomina- 
 tion thereto, or resignation thereof, or for the consent or consents, or 
 voice or voices of any person or persons, to any such appointment, 
 nomination, or resignation ; then and in every such case, every such 
 person, and also every person who shall wilfully and knowingly aid, 
 abet or assist such person therein, shall be deemed and adjudged guilty 
 of a misdemeanor.' 
 
 Sec. 4. ' If any person or persons shall receive, have or take, any 
 money, fee, reward, or profit, directly, or indirectly, or take any prom- 
 ise, agreement, covenant, contract, bond, or assurance, or by any way, 
 means, or device, contract or agree to receive or have any money, fee, 
 gratuity, loan of money, reward or profit, directly or indirectly, for any 
 interest, solicitation, petition, request, recommendation, or negotiation 
 whatever, made or to be made, or pretended to be made, or under any 
 pretence of making, or causing or procuring to be made, any interest, 
 solicitation, petition, request, recommendation, or negotiation, in or 
 about or in anywise touching, concerning, or relating to, any nomi- 
 nation, appointment, or deputation to, or resignation of, any such 
 office, commission, place, or employment, as aforesaid, or under any 
 pretence for using or having used any interest, solicitation, petition, 
 request, recommendation, or negotiation, in or about any such nomi- 
 nation, appointment, deputation, or resignation, or for the obtaining or 
 having obtained the consent or consents, or voice or voices, of any 
 person or persons as aforesaid to such nomination, appointment, depu- 
 tation, or resignation ; and also if any person or persons shall give or 
 pay, or cause or procure to be given or paid, any money, fee, gratuity, 
 loan of money, reward, or profit, or make, or cause, or procure to lie 
 be made, any promise, agreement, covenant, contract, bond, or assur- 
 ance, or by any way, means, or device, contract or agree, or give or 
 pay, or cause or procure to be given or paid, any money, fee, gratuity, 
 loan of money, reward, or profit, for any solicitation, petition, request, 
 recommendation, or negotiation whatever, made or to be made, that 
 shall in anywise touch, concern, or relate to any nomination, appoint- 
 ment, or deputation to, or resignation of, any such office, commission, 
 place, or employment as aforesaid, or for the obtaining or having ob- 
 tained, directly or indirectly, the consent or consents, or voice or 
 voices, of any person or persons as aforesaid, to any such nomination, 
 appointment, deputation, or resignation ; and also if any person or 
 persons shall, for or in expectation of gain, fee, gratuity, loan of 
 money, reward, or profit, solicit, recommend, or negotiate, in any man- 
 ner, for any person or persons, in any matter that shall in anywise 
 touch, concern, or relate to, any such nomination, appointment, depu- 
 tation, or resignation aforesaid, or for the obtaining, directly or indi- 
 rectly, the consent or consents, or voice or voices, of any person or 
 persons to any such nomination, appointment, or deputation, or resig- 
 nation aforesaid, then and in every such case every such person, and 
 also every person who shall wilfully and knowingly aid, abet, or 
 assist, such person therein, shall be deemed and adjudged guilty of a 
 misdemeanor.'
 
 438 Of Buying and Selling Offices. [book ii. 
 
 Sec. 5. If any person shall open or keep any house or place for the 
 soliciting or negotiating any business relating to vacancies in offices, 
 &c, in or under any public department, or to the sale or purchase of 
 such offices, or appointment to them, or resignation, transfer, or ex- 
 change of them, such offender, and every person aiding or assisting 
 therein, is guilty of a misdemeanor. And by sec. 6, any person ad- 
 vertising any office, place, &c, or the name of any person as broker, 
 &c, or printing any advertisement or proposal for such purposes, is 
 liable to a penalty of 50/. 
 
 There are, however, several exceptions from the provisions of this 
 statute, and it did not extend to purchases and exchanges of commis- 
 sions in his Majesty's forces, at the regulated prices ; or to anything 
 done in relation thereto by authorized regimental agents not advertis- 
 ing and not receiving money, &c, in that behalf. But officers receiving, 
 or paying, or agreeing to pay, more than the regulated prices, or paying 
 agents for negotiating, on conviction by a court-martial, forfeited their 
 commissions, and were cashiered. 
 
 By 38 Vict. c. 16, ' The Regimental Exchange Act, 1875,' sec. 2, her 
 Majesty may, from time to time, by regulation, authorize exchanges to 
 be made by officers in her Majesty's regular forces from one regiment 
 or corps to another regiment or corps, on such conditions as to her 
 Majesty may for the time being seem expedient, and nothing con- 
 tained in the Army Brokerage Acts shall extend to any exchanges 
 made in manner authorized by any regulation of her Majesty for the 
 time being in force.' 
 
 Sec. 3. The expression ' The Army Brokerage Acts ' means the Acts 
 following : The 5 & 6 Ed. 6, c 16, and 49 Geo. 3, c. 126. 
 
 The 49 Geo. 3, c. 126, also provides, that it shall not extend to any 
 office excepted from the 5 & 6 Ed. 6, c, 16, or to any office which was 
 legally saleable before the passing of this Act, and in the gift of any 
 person by virtue of any office of which such person is or shall be 
 possessed under any patent or appointment for his life, (e) 
 
 With respect to deputations to offices, it is enacted, that the Act 
 shall not extend to prevent or make void any deputation to any office, 
 in any case in which it is lawful to appoint a deputy, or any agree- 
 ment, &c, lawfully made in respect of any allowance or payment to 
 such principal or deputy respectively, out of the fees or profits of such 
 office. (/) 
 
 Annual reservations, charges, or payments, out of fees or profits of 
 any office, to any person who shall have held such office, in any commis- 
 sion, or appointment of any person succeeding to such office, and agree- 
 ments, &c, for securing such reservations, charges, or payments, are 
 also excepted ; provided that the amount of the reservations, &c, and 
 the circumstances and reasons under which they shall have been per- 
 mitted, shall be stated in the commission or instrument of appoint- 
 ment of the successor, (g) 
 
 The statute enacts, that when the right, estate, or interest, of any 
 person shall be forfeited under any of its provisions, or the provisions 
 
 (e) Id. s. 9. See 35 & 36 Vict. c. 97. (g) Id. s. 11. 
 
 (/) 49 Geo. 3, e. 126, s. 10. And see 
 ante, p. 435.
 
 chap. XVI.] Of Buying and Selling Offices. 439 
 
 of the 5 & 6 Ed. 6, c. 16, the right of such appointment shall vest in 
 the King. (// ) 
 
 Offences against this Act, or the 5 & 6 Ed. 6, c. 16, by any governor, 
 lieutenant-governor, or person having the chief command, civil or mili- 
 tary, in his Majesty's dominions, colonies, or plantations, or his secre- 
 tary, may be prosecuted and determined in the Court of Queen's 
 Bench at Westminster, in the same manner as any crime, &c, com- 
 mitted by any person holding a public employment abroad may be 
 prosecuted under the provisions of the 42 Geo. 3, c. 85. (i) 
 
 Where by an agreement, reciting that the plaintiff carried on the 
 business of a law stationer, and was sub-distributor of stamps, collector 
 of assessed taxes, and agent for the Birmingham Fire Office, and that 
 being desirous of giving up his said business, he had agreed with the 
 defendant for the sale of the same for the sum of 300/., it was wit- 
 nessed that, in consideration of the sum of 300/., the plaintiff agreed 
 to sell and the defendant agreed to buy all the said business of a law 
 stationer so carried on by the plaintiff, and all his goodwill and inter- 
 est therein, and that the plaintiff should not at any time afterwards 
 carry on the business of a law stationer, or collect any of the assessed 
 taxes, but would use his utmost endeavours to introduce the defend- 
 ant to the said business and offices ; it was held that the agreement 
 was a contract for the sale of the offices of sub-distributor of stamps 
 and collector of assessed taxes, and illegal within both the 5 & 6 Ed. 
 6, c. 16, and 49 Geo. 3, c. 126. It was one entire contract, and the 
 defendant could not be called upon to pay, except upon the perfor- 
 mance by the plaintiff of the whole consideration. According to the 
 plain words of the agreement, a part of the consideration was the 
 agreement by the plaintiff to recommend the defendant to the offices, 
 which was prohibited by the statutes. ( k) 
 
 Where a British subject, being a lieutenant in a regiment in the East 
 Indian service, and divers other officers in the said regiment agreed 
 with A. G., that the said lieutenant and other officers should subscribe 
 and pay to the said A. G., being a major and their senior in the said 
 regiment, and that he should accept from them a certain sum of money 
 in consideration of his resigning his said position as major in the said 
 regiment, and creating a vacancy of major therein, and the money was 
 paid to A. G., and he resigned his said position in pursuance of the 
 said agreement ; it was held that the agreement was illegal, under 
 the 49 Geo. 3, c. 126, s. 4, and that a bond given in pursuance of it 
 was void. (/) 
 
 The sale of an East India Director's nomination to a cadetship is 
 within the 49 Geo. 3, c. 126, s. 3, although by the practice of the com- 
 pany such nomination is given only in the form of a presentation of 
 the party by the director to the Court of Directors, ' provided he shall 
 appear to ' them ' eligible for that station,' and he must afterwards be 
 examined by the committee appointed for that purpose, and passed: 
 and although the nomination only gives the party, when examined 
 and passed, a right to go out to India, which he must do at his own 
 expense, and obtain a commission on his landing ; but before that time 
 
 (h) Id. s. 2. (k) Hopkins v. Prescott, 4 C. B. 578. 
 
 (0 Id. s. 14. (l) Graeme v. Wroughton, 11 Exch. 146.
 
 440 Of Buying and Selling Offices. [book ii. 
 
 he receives no pay from the Company, and is not under their control. 
 For the object of the enactment was to prevent all corrupt bargains 
 for the sale of patronage in matters of public concernment ; and with 
 that view it is immaterial whether that to which the nomination is 
 sold can be described with most critical correctness by any of the 
 terms, ' office, commission, place, or employment.' And a cadetship 
 may be described in an indictment under the Act as an ' office, com- 
 mission, place, and employment.' (to) 
 
 A., an attorney, who held the offices of clerk of the peace for a 
 liberty, clerk to the commissioners of land and assessed taxes, clerk 
 to the commissioners of sewers, clerk to the magistrates, clerk to the 
 deputy-lieutenants, steward of divers manors, and coroner to the said 
 liberty, entered into articles of partnership with B., by which, after 
 reciting that he held many offices, &c, and that it had been agreed 
 that they should enter into partnership ' in the said business and in 
 the emoluments of the said offices, &c, upon the terms thereinafter 
 expressed,' it was agreed that they should enter into partnership for 
 twenty years, and that ' all the profits and emoluments arising from 
 the said offices,' &c, during the said partnership should be considered 
 as partnership property, and distributed accordingly ; it was also 
 agreed that if A. died within the term, then, during such period as no 
 son of A. should be a partner in the said business, B. should be inter- 
 ested in one moiety of the said business, and the executors of A. should 
 be entitled to the profits of the other moiety of the said business, to 
 be applied as part of his personal estate ; and it was held that the 
 agreement was not a contract for the sale of an office within the 5 & 6 
 Ed. 6, c. 16, or 49 Geo. 3, c. 126. (n) 
 
 Where a count of an indictment for a misdemeanor in the sale of 
 the office of a chaplain in the East Indies, alleged that the defendants 
 unlawfully and corruptly did contract and agree with D. N. to pro- 
 cure the appointment to a certain office and employment under the 
 appointment and control of the East India Company, to wit, the office 
 and employment of a chaplain in India, of a person duly qualified for 
 the said office to be named by the said D. N. in that behalf ; it was 
 held that the count was bad ; for the contract or agreement must be 
 to receive money or profit, and the word ' corruptly,' is not sufficient 
 to bring it within the Act. (o) 
 
 By the Public Bodies (Corrupt Practices) Act, 1889, 52 & 53 Vict. 
 c. 69, s. 1,— 
 
 (1) 'Every person who shall, by himself, or by or in conjunction 
 with any other person, corruptly solicit or receive, or agree to receive 
 for himself or for any other person, any gift, loan, fee, reward, or ad- 
 vantage (p) whatever, as an inducement to, or reward for, or other- 
 
 (m) R. v. Charretie, 13 Q. B. 447. See includes any office or dignity and any for- 
 
 now, as to appointments to cadetships in bearance to demand any money or money's 
 
 India, 21 & 22 Vict. c. 106, the Act for worth or valuable thing, and includes any 
 
 transferring the government of India to her aid, vote, consent, or influence, or pretended 
 
 Majesty ; and 24 & 25 Vict. c. 104. aid, vote, consent, or influence, and also 
 
 (n) Sterry v. Clifton, 9 C. B. 110. It was includes any promise or procurement of or 
 
 also held that the latter clause was not a agreement or endeavour to procure, or the 
 
 violation of the 22 Geo. 2, c. 46, s. 11, re- holding out of any expectation of any gift, 
 
 pealed by the 7 & 8 Vict. c. 73. loan, fee, reward, or advantage as before 
 
 (o) Samo v. R., 2 Cox, ('. C. 178. defined.' 
 
 (p) By s. 7 ' The expression " advantage "
 
 CiiAP. xvi.] Of Buying and Setting Offices. 441 
 
 wise on account of any member, officer, or servant of a public body, as 
 in this Act defined, (q) doing, or forbearing to do any tiling in respect 
 of any matter or transaction whatsoever, actual or proposed, in which 
 the said public body is concerned shall be guilty of a misdemeanor.' 
 
 (2) ' Every person who shall by himself or by or in conjunction 
 with any other person, corruptly give, promise, or offer any gift, loan, 
 fee, award, or advantage whatsoever, to any person whether for the 
 benefit of that person, or of another person, as an inducement to, or 
 reward for, or otherwise, on account of any member, officer, or servant 
 of any public body, as in this act defined, (r) doing, or forbearing to do, 
 anything in respect of any matter or transaction whatsoever, actual or 
 proposed, in which such public body as aforesaid is concerned, shall 
 be guilty of a misdemeanor.' 
 
 By sec. 2, ' any person, on conviction, for offending as aforesaid, 
 shall, at the discretion of the court before which he is convicted, — 
 
 a. be liable to be imprisoned for any period not exceeding two 
 years, with or without hard labour, or to pay a fine not exceed- 
 ing 500Z., or to both such imprisonment and such fine ; and 
 
 b. in addition, be liable to be ordered to pay to such body, and in 
 such manner as the court directs, the amount or value of any 
 gift, loan, fee, or reward received by Mm, or any part thereof ; 
 and 
 
 c. be liable to be judged incapable of being elected or appointed to 
 any public office for seven years from the date of his conviction, 
 and to forfeit any such office held by him at the time of his con- 
 viction ; and 
 
 d. in the event of a second conviction for a like offence, he shall, in 
 addition to the foregoing penalties, be liable to be adjudged for- 
 ever incapable of holding any public office, and to be incapable 
 for seven years of being registered as an elector, or voting at an 
 election, either of members to serve in Parliament or of members 
 of any public body, and the enactments for preventing the voting 
 and registration of persons declared, by reason of corrupt prac- 
 tices, to be incapable of voting, shall apply to a person adjudged 
 in pursuance of this section to be incapable of voting ; and 
 
 e. if such person is an officer or servant in the employ of any public 
 body, upon such conviction, he shall, at the discretion of the 
 court, be liable to forfeit his right and claim to any compensation 
 or pension to which he would otherwise have been entitled.' 
 
 By sec. 3 (1.) ' Where an offence under this Act is also punishable 
 under any other enactment or at common law, such offence may be 
 prosecuted and punished either under this Act, or under the other 
 enactment, or at common law, but so that no person shall be punished 
 twice for the same offence.' 
 
 (2.) ' A person shall not be exempt from punishment under this 
 
 (q) By s. 7 'The expression "public public health or to poor law, or otherwise to 
 
 body" means any council of a county or administer money raised by rates in pursu- 
 
 eounty of a city or town, any council of a ance of any public general Act, but does not 
 
 municipal borough, also any board, commis- include any public body as above defined 
 
 sioners, select vestry, or other body which has existing elsewhere than in the United 
 
 power to act under and for the purposes of Kingdom.' 
 any Act relating to local government or the (r) Sec. 7, ante.
 
 442 Of Buying and Selling Offices. [book ii. 
 
 Act by reason of the invalidity of the appointment or election of a 
 person to a public office.' 
 
 Sec. 4 provides that no prosecution under the Act shall be instituted 
 except by or with the consent of the Attorney-General. 
 
 By sec. 5 the expenses of the prosecution of an offence against this 
 Act shall be defrayed in like manner as in the case of a felony. 
 
 By sec. 6 offences under the Act are made triable at Quarter 
 Sessions.
 
 CHAPTER THE SEVENTEENTH. 
 
 OF BRIBERY AND OFFENCES AT PARLIAMENTARY AND 
 MUNICIPAL ELECTIONS. («) 
 
 Bribery. 1 — Bribery is the receiving or offering any undue reward 
 by or to any person whatsoever, whose ordinary profession or business 
 relates to the administration of public justice, in order to influence 
 his behaviour in office, and incline him to act contrary to the known 
 rules of honesty and integrity, (b) And it seems that this offence 
 will be committed by any person in an official situation, who shall 
 corruptly use the power or interest of his place for rewards or prom- 
 ises : as in the case of one who was clerk to the agent for French 
 prisoners of war, and indicted for taking bribes in order to procure the 
 exchange of some of them out of their turn, (c) And bribery some- 
 times signifies the taking or giving of a reward for offices of a public 
 nature, (d) Corrupt and illegal practices in giving rewards or making 
 promises, in order to procure votes in the elections of members to 
 serve in Parliament, are also denominated bribery, and punishable, (e) 
 So giving refreshments to voters before they vote, in order to induce 
 them to vote for a particular candidate, is bribery at common law. (/) 
 And the attempt to influence persons serving as jurymen corruptly to 
 one side, by gifts or promises (which, with other practices tending 
 to influence a jury, will be considered in treating of the crime called 
 embracery), {g) may be mentioned as a species of bribery. 
 
 The law abhors the least tendency to corruption ; and upon the 
 principle which has been already mentioned, of an attempt to commit 
 a misdemeanor, being itself a misdemeanor; (h) attempts to bribe? 
 though unsuccessful, have in several cases been held to be criminal. 
 Thus, it is laid down generally, that if a party offers a bribe to a 
 
 (a) Illegal practices and illegal payments (d) 1 Hawk. P. C. c. 67, s. 3. As to this 
 at elections are punishable on summary con- species of bribery, see the preceding Chapter, 
 viction, and are therefore not within the (e) R. v. Pitt, 3 Burr. 1338. 2 Geo. 2, 
 scope of this work. c. 24. 49 Geo. 3, c. 118. 
 
 (b) 3 Inst. 149. 1 Hawk. P. C. c. 67, (/) Hughes v. Marshall, 2 Tyrw. 134 ; 
 s. 2. 4 Blac. Com. 139. S. C, 2 C. & J. 118. 5 C. & P. 151. 
 
 (c) R. v. Beale, E. T. 38 Geo. 3, cited in (g) Post, Chap. XXII. 
 R. v. Gibbs, 1 East, R. 183 ; and see R. v. (h) Ante, p. 196. 
 Vaughan, 4 Burr. 2494, ante, p. 435. 
 
 American Notes. 
 
 1 Many statutes have been passed in him to allow certain claims is illegal. Devlin 
 America as well as in England upon the v. Brady, 32 Barb. 518. And an offer of 
 subject of bribery, but it is impossible even money to a member of a common council to 
 to refer to them in this work. vote for laying a railroad track. S. v. Ellis, 
 
 2 An agreement to use a supposed influ- 4 Vrooin, 102 ; 97 Am. D. 707. Bishop, ii. 
 ence with a street commissioner to induce s. 86.
 
 444 Of Bribery and Offences at Elections. [book ii. 
 
 judge, meaning to corrupt him in a case depending before him, and 
 the judge takes it not ; yet this is an offence punishable by law in 
 the party that offers it. (i) And it has been held to be a misdemeanor 
 to attempt to bribe a cabinet minister, and a member of the Privy 
 Council, to give the defendant an office in the colonies. (/) And an 
 information was granted against a man for promising money to a 
 member of a corporation, to induce him to vote for the election of a 
 mayor, (k) Paying or promising to pay for votes at the election of an 
 assistant overseer is bribery and indictable at common law. (/) An 
 information also appears to have been exhibited against a person for 
 attempting by bribery to influence a juryman in giving his verdict, (ra) 
 
 By the 46 & 47 Vict. c. 41, s. 7, 'Every person who receives any 
 money or valuable consideration from the person to whom a boy is 
 bound apprentice to the sea-fishing service, or to whom a boy under 
 sixteen years of age is bound by any agreement with respect to the 
 sea-fishing service, or from any one on his behalf, or from the boy or 
 any one on his behalf in consideration of the boy being so bound, and 
 every person who makes or causes to be made any such payment, shall 
 be guilty of a misdemeanor whether such boy was or was not validly 
 bound apprentice, or was or was not validly bound by such agreement.' 
 
 Bribery at elections for members of Parliament was always a crime 
 at common law, and consequently punishable by indictment or infor- 
 mation ; (n) but in order to enforce the common law, and because it 
 had not been found sufficient to prevent the evil, considerable penal- 
 ties have been imposed upon this offence by different statutes. It 
 would not be within the scope of the present work to deal fully with 
 the subject of bribery and corruption. Only those portions of the va- 
 rious Acts of Parliament which deal with bribery as a crime or mis- 
 demeanor are here alluded to, and the reader is referred to other works 
 for more general information upon the subject. 
 
 The 17 & 18 Vict. c. 102 (o) consolidated and amended the laws 
 relating to bribery, treating, and undue influence at elections of mem- 
 bers of Parliament. 
 
 Sec. 2. ' The following persons shall be deemed guilty of bribery, 
 and shall be punishable accordingly : — 
 
 1. ' Every person who shall, directly or indirectly, by himself, or 
 by any other person on his behalf, (p) give, lend, or agree to give or 
 lend, or shall offer, promise, (?) or promise to procure, or to endeavour 
 to procure, any money, or valuable consideration, to or for any voter, 
 or to or for any person on behalf of any voter, or to or for any other 
 person in order to induce any voter to vote, or refrain from voting, or 
 
 (i) 3 Inst. 147- R. v. Vaughan, 4 Burr. (p) See Cooper v. Slade, 6 H. L. C. 746. 
 
 2500. Ante, p. 435. (q) A letter was written to an outvoter, 
 
 (j) Vaughan's case, 4 Burr. 2494 ; and requesting him to come to a borough, and 
 
 see R. v. Pollman, 2 Campb. 229. record his vote for S. A postscript added, 
 
 (k) Plympton's case, 2 Ld. Raym. 1377. ' Your railway expenses will be paid.' The 
 
 (?) R. v. Lancaster, 16 Cox, C. C. 737. voter did come and vote as requested: his 
 
 (m) Young's case, cited in R. v. Higgins, travelling expenses were paid. Held, that 
 
 2 East, R. 14 and 16. the promise and payment constituted only 
 
 (n) R. v. Pitt, 3 Burr. 1335, by Lord one act of bribery within this section. 
 
 Mansfield, C. J. Cooper v. Slade, 6 H. L. C. 746. This was 
 
 (o) See the interpretation clause, s. 38, an action for penalties. 
 post, p. 447-
 
 chap, xvii.] Of Bribery and Offences at Elections. 445 
 
 shall corruptly do any such Act as aforesaid, on account of such voter 
 having voted or refrained from voting at any election : 
 
 2. 'Every person who shall, directly or indirectly, by himself or by 
 any other person on his behalf, give or procure, or agree to give or 
 procure, or offer, promise, or promise to procure or to endeavour to pro- 
 cure, any office, place, or employment to or for any voter, or to or for 
 any person on behalf of any voter, or to or for any other person, in 
 order to induce such voter to vote, or refrain from voting, or shall 
 corruptly do any such Act as aforesaid, on account of any voter having 
 voted or refrained from voting at any election : 
 
 3. ' Every person who shall, directly or indirectly, by himself or by 
 any other person on his behalf, make any such gift, loan, offer, promise, 
 procurement, or agreement as aforesaid, to or for any person, in order 
 to induce such person to procure, or endeavour to procure, the return 
 of any person to serve in Parliament, or the vote of any voter at any 
 election : 
 
 4. ' Every person who shall, upon or in consequence of any such 
 gift, loan, offer, promise, procurement, or agreement, procure or engage, 
 promise, or endeavour to procure the return of any person to serve in 
 Parliament, or the vote of any voter at any election : 
 
 5. ' Every person who shall advance or pay, or cause to be paid, any 
 money to or to the use of any other person with the intent that such 
 money or any part thereof shall be expended in bribery at any election, 
 or who shall knowingly pay or cause to be paid any money to any per- 
 son in discharge or repayment of any money wholly or in part ex- 
 pended in bribery at any election. 
 
 ' Provided always, that the aforesaid enactment shall not extend or 
 be construed to extend to any money paid or agreed to be paid for or 
 on account of any legal expenses bond fide incurred at or concerning 
 any election.' 
 
 Sec. 3. ' The following persons shall also be deemed guilty of bribery, 
 and shall be punishable accordingly : — 
 
 1. ' Every voter who shall, before or during any election, directly or 
 indirectly, by himself or by any other person on his behalf, receive, 
 agree, or contract for any money, gift, loan, or valuable consideration, 
 office, place, or employment for himself or for any other person, for 
 voting or agreeing to vote, or for refraining or agreeing to refrain from 
 voting, at any election : 
 
 2. ' Every person who shall, after any election, directly or indirectly, 
 by himself or by any other person on his behalf, receive any money 
 or valuable consideration on account of any person having voted or 
 refrained from voting, or having induced any other person to vote or 
 to refrain from voting, at any election.' 
 
 By 30 & 31 Vict, c. 102 (The Ptepresentation of the People Act, 
 1867), s. 49, ' Any person, either directly or indirectly, corruptly paying 
 any rate on behalf of any ratepayer for the purpose of enabling him to 
 be registered as a voter, thereby to influence his vote at any future elec- 
 tion, and any candidate or other person, either directly or indirectly, 
 paying any rate on behalf of any voter for the purpose of inducing him 
 to vote or refrain from voting, shall be guilty of bribery, and be pun- 
 ished accordingly ; and any person on whose behalf, and with whose
 
 446 Parliamentary Elections. [book ii. 
 
 privity any such payment as in this section is mentioned, is made, 
 shall also be guilty of bribery, and punishable accordingly.' 
 
 Where a test ballot was resorted to in order to determine which of 
 three candidates should stand, it was held that bribery at such test 
 ballot was within the above Act, 17 & 18 Vict. c. 102, sec. 2, sub-sec. 
 3. (r) Payments made to a voter for loss of time while going to deliver 
 his vote are payments for voting, and constitute bribery, (s) So cor- 
 ruptly ] taying rates for the purpose of enabling a ratepayer to be regis- 
 tered and influencing his vote at a future election, is made bribery by 
 the Representation of the People Act, 1867, (t) and payment corruptly 
 given for attendance at a revising court may amount to bribery, (jii) 
 So also money given to induce a voter to vote under colour of a bet 
 would be bribery. It has never been decided that a wager upon an 
 election is bribery per se, nor does it seem that it would be so consid- 
 ered. If done corruptly there can be little doubt that it would be 
 bribery, (v) A corrupt promise of refreshments to voters to induce 
 them to vote is bribery, (w) So also the giving of money ostensibly 
 for the purposes of charity may be an act of bribery if done cor- 
 ruptly, (si) So also it seems payment of money to induce a person 
 to personate a voter is bribery, (y) A voter may be bribed though he 
 is disqualified, (z) It should be observed that it is immaterial at 
 what time before the election the act of bribery is committed if it be 
 done with a view to influence a voter at a coming election, (a) 
 
 It seems that payment of money to a voter after the election is over 
 for having voted is not bribery unless there was a corrupt promise 
 before the election to pay him. (b) 
 
 A parliamentary election was about to take place at C. ; S. was one 
 of the' candidates. In the committee-room of S. the question was dis- 
 cussed whether paying the expense of bringing up out-voters was 
 legal. S., after referring to a law book, said that it was, but limited 
 it to the payment of expenses out of pocket. A circular had been pre- 
 viously prepared and printed, requesting out-voters to come up and 
 vote for S. Upon S. making this declaration of his opinion, a clerk 
 to an agent of S. (without any express direction from S. or from the 
 agent) wrote at the bottom of each circular, ' Your railway expenses 
 will be paid.' A voter who resided at H. received one of the circulars 
 with this added note ; he came to C, voted for S., and afterwards re- 
 ceived the sum of 8s., the expenses to which he had bond fide been 
 put by his journey : Held, that the words added to the circular must 
 be treated as written by the authority of S. ; that the promise and 
 payment were forbidden by the 17 & 18 Vict. c. 102, s. 2, ante, p. 444, 
 and that for the purposes of that statute they must be treated as ' cor- 
 
 (r) Brett v. Robinson, L. R. 5 C. P. 503, [w) Bodmin case, Willes, J. 
 
 39 L. J. C. P. 265. (x) The Windsor case, 1 O'M. & H. 2. 
 
 (s) The Taunton case, 1 O'M. & H. 183. (y) Rogers on Elections, 11th ed., 355 ; 
 
 Simpson v. Yeend, 38 L. J. Q. B. 313. Coventry case, 1 O'M. & H. 105. 
 
 (>) The Cheltenham case, 1 O'M. & H. (;) The Guildford case, 1 O'M. & H. 15, 
 
 64. Willes, J. 
 
 (u) The Hastings case, 1 O'M. & H. 219. («) The Hastings case, supra. 
 
 (») Rogers on Elections, 11th ed., 359, \b) See Cooper v. Slade, 6 H. L. C. 746, 
 
 et seq. Allen v. Hearn, 1 T. E. 56, and other per Lord Wensleydale. Brecon case, No. 2, 
 
 cases collected in Rogers on Elections. 11th Lush, J. 
 ed., 360-362 ; post, p. 456.
 
 chap, xvii.] Of Bribery and Offences at Elections. 447 
 
 ruptly ' made, (c) In one case it was held, that if a man employs an 
 agent to corrupt voters, and that agent in carrying such general in- 
 structions into effect employs subordinate agents within the scope of 
 the authority received from the principal, such principal, with refer- 
 ence to the express terms of this statute, as well as upon general prin- 
 ciples of law, will be guilty of a misdemeanor as a principal, (rf) 
 
 By the 17 & 18 Vict. c. 102, s. 10, 'It shall be lawful for any Crim- 
 inal Court, before which any prosecution shall be instituted for any 
 offence against the provisions of this Act, to order payment to the 
 prosecutor of such costs and expenses as to the said Court shall ap- 
 pear to have been reasonably incurred in and about the conduct of 
 such prosecution ; provided always, that no indictment for bribery or 
 undue influence shall be triable before any Court of quarter sessions.' 
 
 Sec. 12. ' In case of any indictment or information by a private 
 prosecutor for any offence against the provisions of this Act, if judg- 
 ment shall be given for the defendant, he shall be entitled to recover 
 from the prosecutor the costs sustained by the defendant by reason of 
 such indictment or information, such costs to be taxed by the proper 
 officer of the Court in which such judgment shall be given.' 
 
 Sec. 13. 'It shall not be lawful for any Court to order payment of 
 the costs of a prosecution for any offence against the provisions of this 
 Act, unless the prosecutor shall, before or upon the finding of the in- 
 dictment or the granting of the information, enter into a recognizance, 
 with two sufficient sureties, in the sum of two hundred pounds (to be 
 acknowledged in like manner as is now required in cases of writs of 
 certiorari awarded at the instance of a defendant in an indictment), 
 with the conditions following ; that is to say, that the prosecutor shall 
 conduct the prosecution with effect, and shall pay to the defendant or 
 defendants, in case he or they shall be acquitted, his or their costs.' 
 
 Sec. 38. ' Throughout this Act, in the construction thereof, except 
 there be something in the subject or context repugnant to such con- 
 struction, the word " county " shall extend to and mean any county, 
 riding, parts, or division of a county, stewartry, or combined counties 
 respectively returning a member or members to serve in Parliament ; 
 and the words, " city, or borough " shall mean any university, city, 
 borough, town corporate, county of a city, county of a town, cinque 
 port, district of burghs, or other place or combination of places (not 
 being a county as hereinbefore defined), returning a member or mem- 
 bers to serve in Parliament ; and the word " election " shall mean the 
 election of any member or members to serve in Parliament ; and the 
 words " returning officer " shall apply to any person or persons to whom, 
 by virtue of his or their office under any law, custom, or statute, the 
 execution of any writ or precept cloth or shall belong for the election 
 of a member or members to serve in Parliament, by whatever name or 
 title such person or persons may be called; and the words "revising 
 barrister " shall extend to and include an assistant barrister and chair- 
 man, presiding in any Court held for the revision of the list of voters, or 
 his deputy in Ireland, and a sheriff or Sheriff's Court of Appeal in Scot- 
 land, and every other person whose duty it may be to hold a court for 
 the revision and correction of the lists or registers of voters in any part 
 
 (c) Cooper v. Slade, 6 H. L. C. 746. This (d) R. v. Leatham, 3 L. T. 504. 
 
 was an action for penalties.
 
 448 Parliamentary Elections. [book ii. 
 
 of the United Kingdom ; and the word " voter " shall mean any person 
 who has or claims to have a right to vote in the election of a member 
 or members to serve in Parliament.' 
 
 The 26 & 27 Vict. c. 29 (the Corrupt Practices Prevention Act, 
 1863) has the following proviso : — 
 
 Sec. 6. ' In any indictment or information for bribery or undue in- 
 fluence, and in any action or proceeding for any penalty for bribery, 
 treating, or undue influence, it shall be sufficient to allege that the 
 defendant was at the election at or in connection with which the 
 offence is intended to be alleged to have been committed guilty of 
 bribery, treating, or undue influence (as the case may require) ; and in 
 any criminal or civil proceedings in relation to any such offence the 
 certificate of the returning officer in this behalf shall be sufficient evi- 
 dence of the due holding of the election, (e) and of any person therein 
 named having been a candidate thereat.' 
 
 By 17 & 18 Vict. c. 102, s. 35, ' On the trial of any action for recov- 
 ery of any pecuniary penalty under this Act, the parties to such action, 
 and the husbands and wives of such parties respectively, shall be com- 
 petent and compellable to give evidence in the same manner as par- 
 ties, and their husbands and wives are competent and compellable to 
 give evidence in actions and suits under the Act of the 14 & 15 Vict, 
 c. 99, and the Evidence Amendment Act 1853, but subject to and with 
 the exceptions contained in such several Acts, provided always, that 
 any such evidence shall not thereafter be used in any indictment or 
 criminal proceeding under this Act against the party giving it.' 
 
 In an action for bribery at an election it was held, that the register 
 of voters at an election made in pursuance of the 6 & 7 Vict. c. 18, 
 ss. 48, 49, is a document of such a public nature as to be admissible 
 upon its mere production by the returning officer, and therefore an 
 examined or certified copy of it is admissible. (/) 
 
 Where a book, which was in writing, and duly signed, contained the 
 register of voters, Byles, J., held, that though there ought to be a copy 
 of the list printed in a book and duly signed, in order to constitute a 
 proper register, yet this register, though irregular, was valid and ad- 
 missible in evidence, (g) 
 
 By the Eepresentation of the People Act 1871 (30 & 31 Vict, 
 c. 102) s. 11, 'No elector who within six months before or during 
 any election for any county or borough shall have been retained, hired, 
 or employed for all or any of the purposes of the election for reward 
 by or on behalf of any candidate at such election as agent, canvasser, 
 clerk, messenger, or in other like employment, shall be entitled to vote 
 at such election, and if he shall so vote he shall be guilty of a 
 misdemeanor.' 
 
 The 15 & 16 Vict. c. 57, which was passed for the more effectual 
 inquiry into the existence of corrupt practices at elections of members 
 of Parliament, provides that, upon a joint address of both Houses of 
 Parliament, Her Majesty may appoint commissioners to inquire into 
 
 («) See Reed v. Lamb, 6 H. & N. 75, a (/) Reed v. Lamb, 6 H. & N. 75. 
 
 case decided before the passing of this Act ; (g) R. v. Clarke, 1 F. & F. 654. R. v. 
 
 R. v. Varle, 6 Cox, C. C. 470, a case of an Colebourne, ibid, 
 indictment for personating a voter at an 
 election ; and R. v. Clarke, 1 F. & F. 654.
 
 chap, xvii.] Of Bribery and Offences at Elections. 449 
 
 corrupt practices at elections, and makes provision for the conducting 
 of such an inquiry. Sec. 8 empowers the commissioners to summon 
 any person whose evidence they may deem material to the inquiry, 
 and to require any person to produce books, papers, &c, necessary 
 for arriving at the truth of the things to be inquired into by them ; 
 and provides that all persons ' shall answer all questions put to 
 them by the commissioners touching the matters to be inquired into by 
 them, and shall produce all books, papers, deeds and writings required 
 of them, and in their custody or under their control, according to the 
 tenor of the summons : provided always that no statement made by 
 any person in answer to any questions put by such commissioners 
 shall, except in cases of indictment for perjury committed in such 
 answers, be admissible in evidence in any proceeding, civil or 
 criminal.' (h) 
 
 Treating. — By the Corrupt Practices Prevention Act 1883 (46 & 
 47 Vic. c. 51) s. 1, (1) ' Any person who corruptly by himself or by any 
 other person, either before, during or after an election, directly or 
 indirectly gives or provides, or pays wholly or in part the expense of 
 giving or providing any meat, drink, entertainment or provision to or 
 for any person for the purpose of corruptly influencing that person or 
 any other person to give or refrain from giving his vote at the election, 
 or on account of such person or any other person having voted or 
 refrained from voting, or being about to vote or refrain from voting, 
 at such election, shall be guilty of treating. 
 
 (2) ' And every elector who corruptly accepts or takes any such 
 meat, drink, entertainment or provision, shall also be guilty of treating.' 
 
 Undue Influence. — By sec. 2, ' Every person who shall directly or 
 indirectly by himself or by any other person on his behalf make use 
 of or threaten to make use of any violence, force, or restraint, or 
 inflict, or threaten to inflict by himself or by any other person any 
 temporal or spiritual injury, damage, harm or loss upon or against any 
 person in order to induce or compel such person to vote or refrain 
 from voting, or on account of such person having voted or refrained 
 from voting at any election, or who shall by abduction, duress or any 
 fraudulent device or contrivance, impede or prevent the free exercise of 
 the franchise of any elector, or shall thereby compel, induce or prevail 
 upon any elector either to give or to refrain from giving his vote at 
 any election, shall be guilty of undue influence.' (i) 
 
 By sec. 3, the expression ' corrupt practice ' is defined as meaning 
 any of the following offences, namely, treating and undue influence as 
 above defined, bribery as defined by 17 & 18 Vic. c. 102, ss. 2, 3 (ante, 
 pp. 444, 445) ; 30 & 31 Vic. c. 102, s. 49 (ante, p. 445) ; 31 & 32 Vict. 
 c. 48, s. 49 ; 44 & 45 Vic. c. 40, s. 2, and personation as defined by 35 & 
 36 Vic. c. 33, s. 24, post, p. 458, and also aiding, abetting, counselling 
 
 (7i) In R. v. Leatham, 3 L. T. 777, 30 (0 It is intimidation to threaten the 
 
 L. J. Q. B. 205, it was held this proviso did deprivation of that which it would be bribery 
 
 not prevent a letter, which had been pro- to promise the enjoyment of. Westbury case, 
 
 duced before commissioners under this 1 O'M. & H. 52. It is also intimidation to 
 
 section, from being admissible on the trial threaten a withdrawal of custom or dismissal 
 
 of an information for bribery ; for the proviso from employment with intent to influence the 
 
 applies to statements made, and not to vote of a voter. R. v. Barnwell, 5 W. R. 558. 
 
 documents produced. See also 31 & 32 Vict. The Blackburn case, 1 O'M. & H. 204. 
 c. 125, s. 56. 
 
 vol. i. — 29
 
 450 Parliamentary Elections. [book ii. 
 
 and procuring the offence of personation. Every offence which is a 
 corrupt practice under this Act is also a corrupt practice under 31 
 & 32 Vict. c. 125. 
 
 Sec. 4 provides for the absolute disqualification of a candidate per- 
 sonally guilty of corrupt practices, and sec. 5, for his disqualification 
 for seven years if his agents have been guilty of such. 
 
 By sec. 6 (1) 'A person who commits any corrupt practice other 
 than personation or aiding, abetting, counselling or procuring the com- 
 mission of the offence of personation, shall be guilty of a misdemean- 
 or, and on conviction on indictment, shall be liable to be imprisoned, 
 with or without hard labour, for a term not exceeding one year, or to 
 be fined any sum not exceeding 200/.' (j ) 
 
 (2) 'A person who commits the offence of personation, or of aiding, 
 abetting, counselling or procuring the commission of that offence, 
 shall be guilty of felony, and any person convicted thereof on indict- 
 ment shall be punished by imprisonment for a term not exceeding 
 two years together with hard labour.' 
 
 The third subsection provides for the disqualification for seven 
 years of any person convicted of a corrupt practice in addition to the 
 punishment above provided. 
 
 Sees. 7-12 deal with illegal practices, and sections 13-21 with illegal 
 payments or hirings, all of which are punishable on summary 
 conviction. 
 
 Sees. 22 and 23 deal with excuses for corrupt or illegal practices 
 which may free the candidate from disqualification. 
 
 Sees. 24-35 contains provisions as to election officials and expenses. 
 False declaration as to election expenses. — Sec. 33 provides that a 
 declaration as to expenses shall be made by the candidate, and a 
 return of such expenses by his agent ; and by subsection 7, ' If any 
 candidate or election agent knowingly makes the declaration required 
 by this section falsely he shall be guilty of an offence, and on convic- 
 tion thereof on indictment shall be liable to the punishment for wil- 
 ful and corrupt perjury ; such offence shall also be deemed to be 
 a corrupt practice within the meaning of this Act.' 
 
 Sees. 36-39 provide for the disqualification of electors convicted 
 of corrupt or illegal practices. 
 
 Sec. 40 provides for the presentation of an election petition, and sec. 
 41 for its withdrawal. The latter section requires that an affidavit shall 
 be produced stating that no agreement for withdrawal has been en- 
 tered into and also the grounds of withdrawal. And by subsection 4 — 
 Improper withdrawal of election petition. — ' If any person makes 
 any agreement or terms, or enters into any undertaking in relation to 
 the withdrawal of an election petition, and such agreement, terms or 
 undertaking is or are for the withdrawal of the election petition in 
 consideration of any payment, or in consideration that the seat shall 
 at any time be vacated, or in consideration of the withdrawal of 
 any other election petition, or is or are (whether lawful or unlawful) 
 not mentioned in the aforesaid affidavits, he shall be guilty of a mis- 
 demeanor, and shall be liable on conviction on indictment to imprison- 
 
 (j) An indictment charging a corrupt Cox, C. C. 59. R. v. Stroulger, 17 Q. B. D. 
 practice but not specifically alleging what it 327 ante, p. 38. 
 was, is bad for generality. R. v. Norton, 16
 
 chap, xvii.] Of Bribery and Offences at Elections. 451 
 
 merit for a term not exceeding twelve months, and to a fine not 
 exceeding 200/.' 
 
 Sec. 42 provides for the trial of election petitions de die in diem. 
 
 By sec. 43 provision is made for the attendance at the trial of 
 election petitions of the Director of public prosecutions. Subsection 
 4 provides for the summary trial by the Court of any person pro- 
 secuted by the Director for Corrupt or Illegal Practices, but in the case 
 of a corrupt practice must give the person charged the option of being 
 tried by a jury. 
 
 Trial of offences. — By subsection 5, ' Where a person is so prose- 
 cuted for any such offence, and either he elects to be tried by a jury 
 or he does not appear before the Court, or the Court thinks it in the 
 interests of justice expedient that he should be tried before some other 
 Court, the Court, if of opinion that the evidence is sufficient to put the 
 said person upon his trial for the offence, shall order such person to be 
 prosecuted on indictment, or before a Court of Summary Jurisdiction 
 as the case may require for the said offence, and in either case may 
 order him to be prosecuted before such Court as may be named in the 
 order, and for all purposes preliminary and of and incidental to such 
 prosecution the offence shall be deemed to have been committed 
 within the jurisdiction of the Court so named.' (k) 
 
 (6.) ' Upon such order being made, if the accused person is present 
 before the Court and the offence is an indictable offence, the Court shall 
 commit him to take his trial, or cause him to give bail to appear and 
 take his trial for the said offence. 
 
 ' If the accused person is not present before the Court, the Court 
 shall, as circumstances require, issue a summons for his attendance, or 
 a warrant to apprehend him and bring him before a Court of sum- 
 mary jurisdiction, and that Court, if the offence is an indictable 
 offence, (7) shall, on proof only of the summons or warrant and the 
 identity of the accused, commit him to take his trial, or cause him to 
 give bail to appear and take his trial for the said offence.' 
 
 Sec. 45 provides for the institution of prosecutions by the Director 
 of Public Prosecutions, and sec. 46 for the removal of any incapacity 
 proved to have been brought about by perjured evidence. 
 
 By sec. 50. ' Where an indictment as defined by this Act for any of- 
 fence under the Corrupt Practices Prevention Acts, or this Act is insti- 
 tuted in the High Court or is removed into the High Court by a writ 
 of Certiorari issued at the instance of the Attorney-General, and the 
 Attorney-General suggests on the part of the Crown that it is expedient 
 for the purposes of justice that the indictment should be tried in the 
 Central Criminal Court, or if a special jury is ordered, that it should be 
 tried before a judge and jury at the Royal Courts of Justice, the High 
 Court may, if it think fit, order that such indictment shall be so tried 
 upon such terms as the Court may think just, and the High Court may 
 make such orders as appear to the Court necessary or proper for 
 carrying into effect the order for such trial.' 
 
 By sec. 51 (1), 'A proceeding against a person in respect of the 
 offence of a corrupt or illegal practice or any other offence under the 
 Corrupt Practices Prevention Acts or this Act, shall be commenced 
 
 (t) See R. v. Shellard, 23 Q. B. D. 273 ; (I) See R. v. Shellard, ante. 
 
 R. v. Ripley, 17 Cox, C. C. 120.
 
 452 Parliamentary Elections. [book ii. 
 
 within one year after the offence was committed, or, if it was committed 
 in reference to an election with respect to which an inquiry is held hy 
 election commissioners, shall be commenced within one year after the 
 offence was committed, or within three months after the report of such 
 commissioners is made, whichever period last expires, so that it be 
 commenced within two years after the offence was committed, and the 
 time so limited by this section shall, in the case of any proceeding under 
 the Summary Jurisdiction Acts for any such offence whether before an 
 election court or otherwise, be substituted for any limitation of time 
 contained in the last mentioned acts.' 
 
 (2) ' Fcr the purposes of this section the issue of a summons, war- 
 rant, writ, or other process shall be deemed to be a commencement of 
 a proceeding when the service or execution of the same on or against 
 the alleged offender is prevented by the absconding or concealment or 
 act of the alleged offender, but, save as aforesaid, the service or execu- 
 tion of the same on or against the alleged offender, and not the issue 
 thereof, shall be deemed to be the commencement of the proceeding.' 
 
 By sec. 52, 'Any person charged with a corrupt practice, may, if 
 the circumstances warrant such finding, be found guilty of an illegal 
 practice (which offence shall for that purpose be an indictable of- 
 fence), and any person charged with an illegal practice may be found 
 guilty of that offence notwithstanding that the act constituting the 
 offence amounted to a corrupt practice, and a person charged with 
 illegal payment, employment, or hiring may be found guilty of that 
 offence notwithstanding that the act constituting the offence amounted 
 to a corrupt or illegal practice.' 
 
 By sec. 53 (1.), 'Sees. 10, 12 & 13, of 17 & 18 Vic. c. 102, and sec. 
 6 of 26 & 27 Vic. c. 29 (which relate to prosecutions for bribery and 
 other offences under those Acts), shall extend to any prosecution on 
 indictment for the offence of any corrupt practice within the meaning 
 of this Act, and to any action for any pecuniary forfeiture for an 
 offence under this Act, in like manner as if such offence were 
 bribery within the meaning of those Acts, and such indictment or 
 action were the indictment or action in those sections mentioned, and 
 an order under sec. 10 of 17 & 18, Vic. c. 102, may be made on the 
 defendant, but the Director of Public Prosecutions, or any person 
 instituting any prosecution in his behalf or by direction of an election 
 Court, shall not be deemed to be a private prosecutor nor required 
 under the said sections to give any security.' 
 
 (2) ' On any prosecution under this Act, whether on indictment or 
 summarily, and whether before an election Court or otherwise, and in 
 any action for a pecuniary forfeiture, under this Act, the person pro- 
 secuted or sued, and the husband or wife of such person, may, if he or 
 she think fit, be examined as an ordinary witness in the case.' 
 
 (3) ' On any such prosecution or action as aforesaid it shall be 
 sufficient to allege that the person charged was guilty of an illegal 
 practice, payment, employment, or hiring within the meaning of this 
 Act, as the case may be, and the certificate of the returning officer at 
 an election, that the election mentioned in the certificate was duly 
 held, and that the person named in the certificate was a candidate 
 at such election, shall be sufficient evidence of the facts therein 
 stated.'
 
 chap, xvii.] Of Bribery and Offences at Elections. 453 
 
 By sec. 55 (2), ' The enactments relating to charges before justices 
 against persons for indictable offences shall, so far as is consistent 
 with the tenor thereof, apply to every case where an election court 
 orders a person to be prosecuted on indictment, in like manner as if the 
 court were a justice of the peace.' 
 
 By sec. 56 (1), ' Subject to any rules of Court any jurisdiction vested 
 by this Act in the High Court may, so far as it relates to indict- 
 ments or other criminal proceedings, be exercised by any judge of the 
 Queen's Bench Division, and in other respects may either be exercised 
 by one of the judges for the time being on the rota for the trial of 
 election petitions, sitting either in court or at chambers, or may be 
 exercised by a master of the Supreme Court of Judicature in manner 
 directed by and subject to an appeal to the said judges.' 
 
 It is however provided that a master shall not exercise jurisdiction 
 to grant exceptions or excuses. The Court has power to make rules 
 regulating procedure and practice. 
 
 By sec. 57 (1), ' The Director of Public Prosecutions, in performing 
 any duty under this Act, shall act in accordance with the regulations 
 under the Prosecution of Offences Act 1879 (42 & 43 Vict. c. 22), and 
 subject thereto, in accordance with the directions (if any) given to him 
 by the Attorney-General, and any assistant or representative of the 
 Director of Public Prosecutions in performing any duty under this 
 Act, shall act in accordance with the said regulations and directions, if 
 any, and with the directions given to him by the Director of Public 
 Prosecutions.' 
 
 Costs. — (2) ' Subject to the provisions of this Act the costs of any 
 prosecution or indictment for an offence punishable under this Act, 
 whether by the Director of Public Prosecutions or his representative, 
 or by any other person, shall, so far as they are not paid by the defend- 
 ant, be paid in like manner as costs in the case of a prosecution for 
 felony are paid.' 
 
 By sec. 58 (1), provision is made for the payment of costs other 
 than those of a prosecution or indictment. 
 
 (2) ' When any costs or other sums are under the order of an elec- 
 tion court or otherwise under this Act to be paid by any person, those 
 costs shall be a simple contract debt due from such person to the per- 
 son or persons to whom they are to be paid, and if payable to the 
 Commissioners of her Majesty's Treasury shall be a debt to her 
 Majesty, and in either case may be recovered accordingly.' 
 
 Certificate of indemnity. — By sec. 59 (1), 'A person who is called 
 as a witness respecting an election before any election court shall 
 not be excused from answering any question relating to any offence at 
 or connected with such election on the ground that the answer thereto 
 may criminate or tend to criminate himself, or on the ground of 
 privilege. 
 
 Provided that — 
 
 a. A witness who answers truly all questions which he is re- 
 quired by the election Court to answer shall be entitled to receive a 
 certificate of indemnity under the hand of a member of the Court 
 stating that such witness has so answered ; and 
 
 b. An answer by a person to a question put by or before any elec- 
 tion Court shall not, except in the case of any criminal inn!," (ling for
 
 454 Parliamentary Elections. [book ii. 
 
 perjury in respect of such evidence (m) be in any proceeding, civil or 
 criminal, admissible in evidence against him. 
 
 (2) Where a person has received such a certificate of indemnity in 
 relation to an election, and any legal proceeding is at any time insti- 
 tuted against him for any offence under the Corrupt Practices Preven- 
 tion Acts or this Act, committed by him previously to the date of the 
 certificate, at or in relation to the said election, the Court having cog- 
 nizance of the case shall, on proof of the certificate, stay the proceed- 
 ing, and may in their discretion award to the said person such costs 
 as he may have been put to in the proceeding. 
 
 (3) Nothing in this section shall be taken to relieve a person re- 
 ceiving a certificate of indemnity from any incapacity under this Act, 
 or from any proceeding to enforce such incapacity (other than a crimi- 
 nal prosecution). 
 
 (4) This section shall apply in the case of a witness before any 
 election commissioners in like manner as if the expression " election 
 court " in this section included election commissioners. 
 
 (5) Where a solicitor or person lawfully acting as agent for any 
 party to an election petition respecting any election for a county or 
 borough has not taken any part or been concerned in such election, 
 the election commissioners inquiring into such election shall not be 
 entitled to examine such solicitor or agent respecting matters which 
 came to his knowledge by reason only of his being concerned as solici- 
 tor or agent for a party to such petition.' 
 
 By sec. 60, ' An election court or election commissioners, when 
 reporting that certain persons have been guilty of any corrupt or ille- 
 gal practice, shall report whether those persons have or not been 
 furnished with certificates of indemnity, and such report shall be laid 
 before the Attorney-General (accompanied, in the case of the commis- 
 sioners, with the evidence on which such report was based), with a 
 view to his instituting or directing a prosecution against such persons 
 as have not waived certificates of indemnity, if the evidence should 
 in his opinion be sufficient to support a prosecution.' 
 
 Definition of terms. — By sec. 64, the various terms used in the Act 
 are defined, — 
 
 ' Election ' means the election of a member or members to serve in 
 Parliament 
 
 ' Election petition ' means a petition presented in pursuance of the 
 Parliamentary Elections Act 1868 (31 & 32 Vict. c. 125) as amended by 
 this Act. 
 
 (m) A witness before such a commission ments for perjury as to cases of indictments 
 
 of inquiry was, after giving his evidence for perjury, must be considered to mean per- 
 
 before it, indicted for perjury committed jury committed in answer to questions put 
 
 before a judge, on the trial of an election by the Commissioners on the inquiry, and 
 
 petition in respect of the same election with not to perjury generally, and therefore that 
 
 reference to which he was examined before the above evidence was not admissible. R. 
 
 the commissioners. Statements made by v. Buttle, L. R. 1 C. C. R. 248 ; 11 Cox, C. 
 
 such witness, in answer to questions put by C. 566. See also R. v. Slator, 8 Q. B. D. 
 
 the commissioners relative to corrupt prac- 267. The words however of 46 & 47 Vict, 
 
 tices at such election, were given in evidence c. 51, s. 59 are "except in the case of any 
 
 against him to prove the indictment for per- criminal proceeding for perjury" and this 
 
 jury. Held, that the exception in the would seem to destroy the effect of the last 
 
 proviso to 26 & 27 Vict. c. 29, s. 7, which named decision, 
 provided an exception in the case of indict-
 
 chap, xvii.] Of Briber// and Offences at Elections. 455 
 
 ' Election court ' means the judges presiding at the trial of an elec- 
 tion petition or, if the matter comes before the High Court, that court. 
 
 ' Person ' includes an association or body of persons corporate or 
 incorporate, and where any act is done by any such association or 
 body, the members of such association or body who have taken part 
 in the commission of such act shall be liable to any fine or punish- 
 ment imposed for the same by this Act. 
 
 ' Indictment ' includes information. 
 
 ' Costs ' includes costs and charges and expenses. 
 
 Decisions on repealed statutes. — It may be well to notice the de- 
 cisions on the repealed statute, 2 Geo. 2, c. 24, in this place. 
 
 It was held that, notwithstanding the 2 Geo. 2, c. 24, which made 
 the offender liable to forfeit five hundred pounds, bribery in elections 
 of members to serve in Parliament remained a crime at common law ; 
 that the Legislature never meant to take away the common-law crime, 
 but to add a penal action ; and that this appears by the words in the 
 statute — ' or being otherwise lawfully convicted thereof.' (?i) 
 
 There was a great difference between the two parts of sec. 7 of the 
 2 Geo. 2, c. 24. (o) The first part, which was applicable to the voter 
 contained the word 'ask,' which was not repeated in the second. From 
 this it might be taken that, in an action against the party tendering 
 the bribe, proof should be required of more than a mere solicitation. 
 Then, in the first part, the words went on thus, ' or agree or contract 
 for any money,' the agreement, therefore, would subject the party to 
 the penalty, (p) In the second part the words were ' corrupt or pro- 
 cure.' As to procuring, it was necessary that the vote should be actu- 
 ally given, but the corruption was complete by effecting an agreement 
 amounting to corruption, although the vote was not given. If, there- 
 fore, A. gave money to B. to induce B. to vote for a candidate, and B. 
 agreed to do so, in consideration of the gift, A. was liable to the pen- 
 alty, for corrupting, although B. never gave the vote, (q) and two 
 judges thought that A. was equally liable, if B. never intended to vote 
 according to the agreement at all, as A. had done all that lay with 
 him ; (>•) and this opinion was held to be correct by the Court of 
 Exchequer, (s) 
 
 Where a friend of the candidate gave an elector five guineas to vote, 
 and took from him a note for that sum, but at the same time gave a 
 counter note to deliver up the first note when the elector had voted, 
 it was held to be an absolute gift and bribery within the Act, although 
 the elector voted for the opposite party. (0 And laying a wager with 
 
 (n) R. v. Pitt, 3 Burr. 1335, 1339. S. C. employed by him shall by any gift or reward, 
 
 1 Blac. R. 380. See Coombe v. Pitt, 1 Blac. or by any promise, agreement or security for 
 
 R. 524 ; R. v. Pitt, 3 Burr. 1340 ; R. v. any gift or reward, corrupt or procure any 
 
 Heydon, 3 Burr. 1359; R. v. Haydon, 3 person or persons to give his or their vote or 
 
 Burr. 1387. S. C. 1 Blac. R. 404 ; Pugh v. votes, or to forbear to give his or their vote 
 
 Curgenven, 3 Wils. 35. And see the cases or votes in any such election.' 
 collected in 1 Hawk. P. C. c. 67, s. 13. (p) Per Patteson, J., Henslowu. Faucett, 
 
 (o) The 2 Geo. 2, c. 24, s. 7, was, ' If any 3 A. & E. 51. 4 N. & M. 592. S. C. 
 person shall ask, receive, or take any money (q) Henslow v. Faucett. See the form 
 
 or other reward, by way of gift, loan, or other of declaration there, 
 device, or agree or contract for any money, (r) Patteson and Coleridge, JJ., ibid. 
 
 gift, office, employment, or other reward (s) Harding v. Stokes, 2 M. & W. 233, 
 
 whatsoever, to give his vote, or to refuse or S. C, T. & G. 599. 
 
 forbear to give his vote in any such election ; (t) Sulstou v. Norton, 3 Burr. 1235. 1 
 
 or if any person by himself or any person Blac. Rep. 317. Orme, 296, note.
 
 456 Parliamentary Elections. [book ii. 
 
 the voter that he did not vote for a particular candidate was also 
 bribery within the Act. Qii) In an action upon this statute it was 
 held, that, before the time of election, any one was a candidate for 
 whom a vote was asked ; and that it was not competent to the defend- 
 ant to dispute a man's right of voting when he had asked him for his 
 vote ; it being immaterial whether the voter bribed had a right to vote 
 or not, if he claimed to have such right, (v) A declaration upon this 
 statute must have stated what the bribe was, and specified that the 
 defendant took money or some other particular species of reward ; and 
 where it stated generally ' that the defendant did receive a gift or 
 reward' in the disjunctive, it was held bad in arrest of judgment, the 
 charge being of a criminal nature, (w) And where the person corrupt- 
 ing was sued the same rule applied. And as the means of corrupting 
 must have been stated, so they must have been stated accurately 
 according to the facts. Where those means rested in agreement only, 
 the actual agreement must have been stated in order that the party 
 might know what he had to answer, and might be able to plead the 
 verdict, whatever it might be, in another action, though it might not 
 be necessary to state the matter with the same precision as in an 
 action on the agreement supposing it were legal, (x) Where therefore 
 a count stated that the defendant corrupted a voter by promising him 
 to pay a debt of 411. and the evidence was a promise to pay the debt 
 of 41/. and the expenses in respect of the pledge of a boat, the voter's 
 property, for such debt, it was held that there was a fatal variance 
 between the promise alleged and that proved by reason of the omission 
 in the declaration of all mention of the expenses. (//) But where a 
 count alleged that the defendant corrupted a voter by giving 10/. and 
 promising to pay 311. in addition, and the evidence proved the pay- 
 ment of the 10/. and the promise to pay 31/. and also the expenses of 
 the pledge of the boat , it was held that the offence consisted in cor- 
 rupting, which depends entirely on the means used in soliciting. The 
 payment of 10/. was undoubtedly corruption, and was sufficient to 
 support this count, and that the promise to pay 31/. more might be 
 treated as surplusage, and, that being so, the omission to add ' and the 
 expenses ' was immaterial, (z) 
 
 The words of sec. 7 were all prospective, and they were construed 
 as if they had been ' in order to give,' and ' in order to forbear to give,' 
 and consequently they did not include a case where money was given 
 to a voter after an election, for having voted for a candidate, there 
 having been no agreement made before the election for giving such 
 money, (a) 
 
 A declaration under the 2 Geo. 2, c. 24, s. 7, for corrupting a voter 
 by corruptly giving the voter the sum of 10/. as a reward to him to 
 give his vote, was supported by evidence that the defendant gave the 
 voter a card in one room, which the voter presented to a person in 
 
 (u) 1 Hawk. P. C. c. 67, s. 10, note (4), (aj) Per curiam, Baker v. Rusk, 15 Q. B. 
 
 citing Loft, 552, and referring also to Allen 870. 
 
 v. Hearne, 1 T. R. 56, where a wager between (y) Baker i>. Rusk, supra. 
 
 two voters, with respect to the event of an (z) Baker v. Rusk, supra; and see 
 
 election, laid before the poll began, was held Coombe v. Pitt, 3 Burr. 15S6. 
 to be illegal. (a) Lord Huntingtower v. Gardiner, 1 B. 
 
 (v) Coomb' v. Pitt, 1 Blac. R. 523. & C. 297. See ante, p. 446. 
 
 ("•) Davy v. Baker, 5 Burr. 2471.
 
 chap, xvn.] Of Briber// and Offences at Elections. 457 
 
 another room, who thereupon gave him the money. (V) And it was 
 held, in the same case, that the plaintiff might prove that the defend- 
 ant on the same day, and at the same place, gave cards to other 
 persons, who also obtained money by presenting them to the person 
 in the other room, (c) 
 
 It seems that an indictment against a voter under the 2 & 3 Will. 4, 
 c. 45, s. 58, for giving a false answer at an election is insufficient if it 
 merely state that the voter gave the answer at an election, and does 
 not aver the writ for holding the election, or that the election was 
 duly held, (d) 
 
 Ballot Act. — By the Ballot Act, 1872 (35 & 36 Vict. c. 33) enti- 
 tled, ' An Act to amend the law relating to procedure at parliamentary 
 and municipal elections,' s. 3, ' every person who 
 
 (1.) Forges or fraudulently defaces or fraudulently destroys any 
 nomination paper, or delivers to the returning officer any 
 nomination paper, knowing the same to be forged ; or 
 (2.) Forges or counterfeits or fraudulently defaces or fraudulently 
 destroys any ballot paper or the official mark on any ballot 
 paper ; or 
 (3.) Without due authority supplies any ballot paper to any 
 
 person ; or 
 (4.) Fraudulently puts into any ballot box any paper other than 
 the ballot paper which he is authorised by law to put in ; or 
 (5.) Fraudulently takes out of the polling station any ballot 
 
 paper ; or 
 (6.) Without due authority destroys, takes, opens, or otherwise 
 interferes with any ballot box or packet of ballot papers then 
 in use for the purposes of the election, 
 shall be guilty of a misdemeanor, and be liable, if he is a returning 
 officer or an officer or clerk in attendance at a polling station, to 
 imprisonment for any term not exceeding two years, with or without 
 hard labour, and if he is any other person, to imprisonment for any 
 term not exceeding six months, with or without hard labour. Any 
 attempt to commit any offence specified in this section shall be punish- 
 able in the manner in which the offence itself is punishable. 
 
 ' In any indictment or other prosecution for an offence in relation 
 to the nomination papers, ballot boxes, ballot papers, and marking 
 instruments at an election, the property in such papers, boxes, and 
 instruments may be stated to be in the returning officer at such elec- 
 tion, as well as the property in the counterfoils.' 
 
 On the trial of an indictment for fraudulently placing ballot papers 
 in a ballot box at a municipal election contrary to 35 & 36 Vict. c. 33, 
 s. 3, a sealed packet was produced under the order of a county court 
 judge, obtained under 35 & 36 Vict. c. 33, sched. 1, rules 40, 41, part ii., 
 r. 64, and the counterfoils and marked register and voting papers 
 produced therefrom were given in evidence and the face of the voting 
 papers inspected : Held, that the evidence was properly admitted, (e) 
 By sec. 20, the poll at every contested municipal election shall, so far 
 
 (b) Webb v. Smith, 4 Bing. N. C. 373. the form of an indictment for bribery or 
 
 (c) Ibid. undue influence. 
 
 (d) R. v. Bowler, C. & M. 559. E. v. (e) R. v. Beardsall, 1 Q. B. D. 452 ; 45 L. 
 Ellis, C. & M. 564. See ante, p. 448, as to J. M. C. 157 ; 13 Cox, C. C. 193.
 
 458 Parliamentary Elections. [book el 
 
 as circumstances admit, be conducted in the manner in which the poll 
 is by this Act directed to be conducted at a contested parliamentary 
 election, and, subject to the modifications expressed in the schedules 
 annexed hereto, such provisions of this Act and of the said schedules 
 as relate to or are concerned with a poll at a parliamentary election 
 shall apply to a poll at a contested municipal election : Provided as 
 follows : 
 
 (1.) The term 'returning officer' shall mean the mayor or other 
 officer who, under the law relating to municipal elections, 
 presides at such elections. 
 (2.) The term ' petition questioning the election or return ' shall 
 mean any proceeding in which a municipal election can be 
 questioned. 
 (3.) The mayor shall provide everything which in the case of a 
 parliamentary election is required to be provided by the 
 returning officer for the purpose of a poll. 
 (4.) All expenses shall be defrayed in manner provided by law 
 
 with respect to the expenses of a municipal election. 
 (5.) No return shall be made to the Clerk of the Crown in 
 
 Chancery. 
 (6.) Nothing in this Act shall be deemed to authorize the 
 appointment of any agent of a candidate in a municipal 
 election, but if in the case of a municipal election any agent 
 of a candidate is appointed, and a notice in writing of such 
 appointment is given to the returning officer, the provisions 
 of this Act with respect to agents of candidates shall, so far 
 as respects such agent, apply in the case of that election. 
 (7.) The provisions of this Act with respect to — 
 
 a. The voting of a returning officer ; and 
 
 b. The use of a room for taking a poll ; and 
 
 c. The right to vote of persons whose names are on the 
 register of voters ; shall not apply in the case of a muni- 
 cipal election. 
 
 A municipal election shall, except in so far as relates to the taking of 
 the poll in the event of its being contested, be conducted in the 
 manner in which it would have been conducted if this Act had not 
 passed. 
 
 Personation. — By sec. 24 ' the following enactments shall be 
 made with respect to personation at parliamentary and municipal 
 elections: — 
 
 ' A person shall, for all purposes of the law relating to parliamentary 
 and municipal elections, (/) be deemed to be guilty of the offence of 
 personation who at an election for a county or borough, or at a muni- 
 cipal election, (g) applies for a ballot paper in the name of some other 
 person, whether that name be that of a person living or dead, (h) or of 
 
 (/) See R. v. Bent, 1 Den. G. C. 157 ; 2 ruled not to be necessary to produce the 
 
 0. K. 179, a case decided before this Act. charter of the city. 
 R. v. Thompson, 2 M. & Rob. 355. (/<) See Whiteley v. Chapell, 11 Cox, 
 
 (</) See R. v. Turner, 12 Cox, C. C. 313, C. C. 307. It is not necessary in an in- 
 
 where, on an indictment under this section dictment under the section to prove the 
 
 for an offence at a municipal election, it was appointment of the presiding officer. R. v. 
 
 Garvey, 16 Cox, C. C. 252.
 
 chap, xvii.] Of Briber// and Offences at Elections. 459 
 
 a fictitious person, (i) or who, having voted once at any such election, 
 applies at the same election for a ballot paper in his own name.' (j) 
 
 It shall be the duty of the returning officer to institute a prosecu- 
 tion against any person whom he may believe to have been guilty of 
 personation, or of aiding, abetting, counselling, or procuring the com- 
 mission of the offence of personation by any person, at the election for 
 which he is returning officer, and the costs and expenses of the prose- 
 cutor and the witnesses in such case, together with compensation for 
 their trouble and loss of time, shall be allowed by the Court in the 
 same manner in which Courts are empowered to allow the same in 
 cases of felony. 
 
 ' The Provisions of the Registration Acts, (k) specified in the third 
 schedule to this Act, shall in England and Ireland respectively apply 
 to personation under this Act in the same manner as they apply to a 
 person who knowingly personates and falsely assumes to vote in the 
 name of another person as mentioned in the said Acts.' 
 
 In a case before this Act the first count recited at length a writ to 
 the sheriff of Gloucester to hold an election for a member of Parlia- 
 ment for that city, and alleged that an election was held by virtue of 
 that writ, and that the prisoner at that election unlawfully personated 
 another person ; the second count alleged that ' at the said election ' 
 the prisoner falsely answered a question ; the third count alleged that 
 at a certain election of a member to serve in Parliament for the city 
 of Gloucester, the prisoner unlawfully personated another person ; and 
 the last count alleged that ' at the election last aforesaid ' the prisoner 
 falsely answered a question ; and Crompton, J., held that the writ to 
 the sheriff, or an examined copy of it, must be produced. (/) 
 
 By the 22 Vict. c. 35, s. 9, ' If, pending or after any election of coun- 
 cillors, auditors, or assessors, any person shall personate, or induce any 
 other person to personate, any person entitled to vote at such elec- 
 tion,' &c, he may be summarily convicted by two justices. T. Hague, 
 pending the annual election of councillors for a ward in Sheffield, gave 
 a nomination paper signed by one G-. Bamford to J. Fogle, and asked 
 him to take it to a school-room and vote. Fogle said it was not his 
 name that was on it. Hague told him to vote for Wood and Trickett, 
 and said he was to take the paper and put it down before a gentleman 
 he would see sitting, and that they would not say anything to him. 
 Fogle took the paper, and put it into the hands of the presiding officer 
 at the school-room for the reception of votes for the said ward ; and the 
 officer, being so required, asked Fogle, ' Are you the person whose 
 name is signed as G-. Bamford to the voting paper now delivered by 
 you?' and Fogle answered, ' No.' Bamford' s name was at the time 
 on the burgess roll. The voting paper was not filed, nor was the vote 
 of G-. Bamford recorded in consequence of the paper being so handed 
 
 (i) A person may have two names and lution for application for a school board. R. 
 
 may vote in that name by which he is de- v. Sankey, 3 Q. B. D. 379. 
 
 scribed on the register. R. y..Fox, 16 Cox, (k) 6 & 7 Vict. c. 18, ss. 85 to 89 ; 13 & 
 
 C. C. 166. 14 Vict. c. 69, ss. 92 to 96, both inclusive. 
 
 (j) The section is made applicable to a These enactments provide for taking the 
 
 poll for ascertaining the wishes of ratepayers offender into custody and taking him before 
 
 as to a free library, see 53 & 54 Vict. c. 68, a magistrate. 
 
 Sched. I. s. 12, but not apparently to a reso- (I) R. v. Vaile, 6 Cox, C. C. 470; see 
 
 26 & 27 Vict. e. 29, s. 6, ante, p. 448.
 
 460 Municipal Elections. [book ii. 
 
 in. Two justices convicted Hague for inducing Fogle to personate 
 Bamford at the said election, and the sessions, on appeal, confirmed 
 the conviction, subject to the opinion of the Court of Queen's Bench, 
 whether Hague had, under the above facts, committed the alleged 
 offence ; and it was urged that, as Fogle did not vote, and on being 
 asked, at once declared that he was not Bamford, he had not been 
 guilty of personation, and therefore Hague had not been guilty of 
 inciting him to commit it. But it was held that if a man goes up to 
 a voting place and represents himself as another person, it is a false 
 personation. Here Fogle gave in a voting paper, and so represented 
 himself to be another person, and thereby the personation was 
 complete, (m) 
 
 Definition of words. — By 35 & 36 Vict. c. 33, sec. 29, the ex- 
 pression 'municipal borough' means any place for the time being 
 subject to the Municipal Corporation Acts, or any of them. The ex- 
 pression ' Municipal Corporation Acts ' means, as regards England, the 
 Act of 5 & 6 Will. 4, c. 76, and the Acts amending the same. The 
 expression ' municipal election ' means, as regards England, an election 
 of any person to serve the office of councillor, auditor, or assessor of any 
 municipal borough, or of councillor for a ward of a municipal borough. 
 
 By sec. 30, this Act shall apply to any parliamentary or municipal 
 election which may be held after the passing thereof. 
 
 By sec. 31, nothing in this Act, except part III. [ss. 24 to 27] 
 thereof, shall apply to any election for a university or combination of 
 universities. 
 
 Corrupt practices at municipal elections. — By the Municipal Cor- 
 porations Act, 1882, (n) s. 77, 'bribery,' 'treating,' 'undue influence,' 
 and ' personation ' include respectively anything done before, at, after, 
 or with respect to a municipal election which if done before, at, after, 
 or with respect to a Parliamentary election would make the person 
 doing the same liable to any penalty, punishment, or disqualification 
 for bribery, treating, undue influence, or personation, as the case may 
 be, under any Act for the time being in force with respect to Parlia- 
 mentary elections. 
 
 By sec. 86, ' The enactments for the time being in force for the de- 
 tection of personation and for the apprehension of persons charged 
 with personation at a Parliamentary election, shall apply in the case 
 of a municipal election.' 
 
 By sec. 59, at an election of councillors the presiding officer shall, if 
 required by two burgesses, or by a candidate or his agent, make en- 
 quiry of voters whether they are the persons enrolled on the roll, and 
 whether they have already voted, and ' if any person wilfully make a 
 false answer thereto, he shall be guilty of a misdemeanor.' 
 
 By sec. 74, ' If any person forges or fraudulently defaces or fraudu- 
 lently destroys any nomination paper, or delivers to the town clerk any 
 forged nomination paper, knowing it to be forged, he shall be guilty 
 of a misdemeanor, and shall be liable to imprisonment for any term 
 not exceeding six months, with or without hard labour. 
 
 ' Any attempt to commit any such offence shall be punishable as the 
 offence is punishable.' 
 
 (,n ) R. v. Hague, 9 Cox, C. C. 412. The it was good, and that it was not necessary to 
 
 conviction merely alleged that Hague ' un- state the means of the inducement. 
 lawfully and knowingly did induce Fogle to (n) 45 & 46 Vict. c. 50. 
 
 personate Bamford :' and it wis held that
 
 chap, xvii.] Of Bribery and Offences at Elections. 461 
 
 By the Municipal Elections (Corrupt and Illegal Practices Act, 
 1884), 47 & 48 Vict. c. 70, s. 2 (o) (1.), the expression ' corrupt pract ice ' 
 is defined in similar terms to those in 46 & 47 Vict. c. 51, s. 3 (see 
 ante, p. 449), and is made to include treating and undue influence as 
 defined by 46 & 47 Vict. c. 51, ss. 1 and 2. See ante, p. 449, and also 
 45 & 46 Vict. c. 50, s. 77. 
 
 (2.) ' A person who commits any corrupt practice in reference to a 
 municipal election shall be guilty of the like offence, and, on convic- 
 tion, shall be liable to the like punishment, and subject to the like 
 incapacities as if the corrupt practice had been committed in reference 
 to a parliamentary election.' 
 
 Sees. 4-8 deal with illegal practices and their punishment on 
 summary conviction ; and sees. 9-18 have reference to illegal em- 
 ployment, hiring, &c. 
 
 Sec. 26, which regulates the proceedings or the withdrawal of an 
 election petition, is in the same terms as sec. 41 of 46 & 47 Vict. c. 51 
 (see ante, p. 450). 
 
 Sec. 28, which has reference to the attendance of the Director of 
 Public Prosecutions at the trial of election petitions, is identical with 
 sec. 43 of 46 & 47 Vict. c. 51 (see ante, p. 451). 
 
 By sec. 30, ' Subject to the other provisions of this Act, the proce- 
 dure for the prosecution of a corrupt or illegal practice, or any illegal 
 payment, employment, or hiring, committed in reference to a munici- 
 pal election, and the removal of any incapacity incurred by reason of 
 a conviction or report relating to any such offence, and the duties of 
 the Director of Public Prosecutions in relation to any such offence, 
 and all other proceedings in relation thereto (including the grant to a 
 witness of a certificate of indemnity), shall be the same as if such 
 offence had been committed in reference to a parliamentary election ; 
 and sees. 45 & 46 and sees. 50-57, both inclusive, and sees. 59 and 60 
 of the 46 and 47 Vict. c. 51, shall apply accordingly as if they were 
 re-enacted in this Act, with the necessary modifications, and with the 
 following additions : — 
 
 a. Where the Director of Public Prosecutions considers that the 
 circumstances of any case require him to institute a prosecution be- 
 fore any Court other than an election Court, for any offence other than 
 a corrupt practice committed in reference to a municipal election in 
 any borough, he may, by himself or his assistant, institute such prose- 
 cution before any Court of summary jurisdiction in the county in 
 which the said borough is situate, or to which it adjoins, and the 
 offence shall be deemed for all purposes to have been committed 
 within the jurisdiction of such Court ; 
 
 b. General rules for the purposes of part 4 of the Municipal Cor- 
 porations Act, 1882, shall be made by the same authority as rules of 
 court under the said section ; and 
 
 c. The giving or refusal to give a certificate of indemnity to a wit- 
 ness by the election Court shall be final and conclusive.' 
 
 By sec. 35 the Act is made applicable to the city of London, and by 
 sec. 36 to elections for local boards, guardians, improvement commis- 
 sioners, and school-boards. 
 
 (o) The Act applies to the election of County Councillors, 51 & 52 Vict. c. 41,
 
 CHAPTER THE EIGHTEENTH. 
 
 OF NEGLECTING OR DELAYING TO DELIVER ELECTION WRITS. 
 
 The 53 Geo. 3, c. 89, was passed for the purpose of effecting the 
 more expeditious and regular conveyance of writs for the election of 
 members to serve in Parliament. It enacts that the messenger, or 
 pursuivant of the great seal, or his deputy, shall, after the receipt of 
 such writs, forthwith carry such of them as shall be directed to the 
 sheriffs of London or Middlesex, to the respective officers of such 
 sheriffs, and the other writs to the general post-office in London, and 
 there deliver them to the postmaster-general for the time being, or to 
 such other person as the postmaster shall depute to receive the same 
 (which deputation the postmaster is thereby required to make), who, 
 on receipt thereof, shall give an acknowledgment in writing, express- 
 ing therein the time of delivery, and shall keep a duplicate of such 
 acknowledgment signed by the parties respectively to whom and by 
 whom the same shall be so delivered ; and that the postmaster or his 
 deputy shall despatch all such writs free of postage, by the first post 
 or mail, after the receipt thereof, under covers directed to the proper 
 officers, to whom the said writs shall be respectively directed, accom- 
 panied with proper directions to the postmaster or deputy postmaster 
 of the place, or nearest to the place where such officers shall hold 
 their office, requiring such postmaster or deputy forthwith to carry 
 such writs respectively to such office, and to deliver them there to 
 the officers to whom they shall be respectively directed, or their 
 deputies, who are required to give to such postmaster or deputy a 
 memorandum in writing, acknowledging the receipt of every such 
 writ, and setting forth the day and the hour the same was delivered 
 by such postmaster or deputy, and which memorandum shall also be 
 signed by such postmaster or deputy, who is required to transmit 
 the same by the first or second post afterwards to the postmaster- 
 general or his deputy at the general post-office in London, who are 
 required to make an entry thereof in a proper book for that purpose, 
 and to file the memorandum along with the duplicate of the said 
 acknowledgment, signed by the messenger, to the intent that the same 
 may be inspected or produced upon all proper occasions by any person 
 interested in such elections, (a) 
 
 The statute, after directing that all persons to whom the writs for 
 the election of members to Parliament ought to be and are usually 
 directed, shall, within a month, send to the postmaster-general an ac- 
 count of the places where they shall hold their offices, and so from 
 time to time, as often as such places shall be changed ; and of the 
 
 (a) 53 Geo. 3, c. 89, s. 1.
 
 chap, xvni.] Neglecting to Deliver Election Writs. 403 
 
 post town nearest to such offices ; or in case any such office shall be in 
 London, Westminster, or Southwark, or within five miles thereof, shall 
 send such account to the messenger of the great seal ; (b) proceeds to 
 enact, that after the death of the then messenger of the great seal the 
 allowances of mileage shall cease, except an allowance of two guineas 
 on each writ for the election of a member on any vacancy, and of 
 fifty pounds on the calling of a new Parliament, (c) And it further 
 enacts, that whereas the messenger of the great seal and his deputy 
 have from time to time received certain other fees for the conveyance 
 and upon the delivery of these writs, such fees shall cease from the 
 passing of the Act ; and that neither the messenger nor his deputy, 
 nor any other person, shall receive or take any fee, reward, or gratuity 
 whatsoever, for the conveyance or delivery of any such writ. (//) 
 
 The sixth section enacts, ' that every person concerned in the trans- 
 mitting or delivery of any such writ as aforesaid who shall wilfully 
 neglect or delay to deliver or transmit any such writ, or accept any 
 fee, or do any other matter or thing in violation of this Act, shall be 
 guilty of a misdemeanor, and may upon any conviction upon any 
 indictment or information in his Majesty's Court of King's Bench 
 be fined and imprisoned at the discretion of the Court for such 
 misdemeanor.' 
 
 (b) 53 Geo. 3, c. 89, ss. 2, 3. By 36 & proceeds to give to the then messenger an 
 37 Vict. c. 91, s. 2, from "the chancellor " annual allowance for his life of £520 in coin- 
 to " Cinque Port," is repealed. pensation for these fees. This part of the 
 
 (c) Id. sec. 4. section is repealed by 36 & 37 Vict. c. 91. 
 
 (d) Id. sec. 5. And the section further
 
 CHAPTER THE NINETEENTH. 
 
 OF DEALING IN SLAVES. 1 
 
 The 5 Geo. 4, c. 113 («) (which is incorporated in the ' Slave Trade 
 Act, 1873,') (b) repeals all the Acts and enactments relating to the 
 slave trade, and the abolition thereof, and the exportation or importa- 
 tion of slaves, except so far as they have repealed any prior Acts or 
 enactments, or may have been acted upon, or may be expressly con- 
 firmed by the present Act. It then enacts, that it shall not be lawful 
 (except in such special cases as are thereinafter mentioned) to deal in 
 slaves, or to remove, import, ship, trans-ship, &c, any persons as slaves, 
 or to fit out, employ, &c, any vessels in order to accomplish such 
 unlawful objects, or to lend money, &c, or to become guarantee, &c, 
 for agents in relation to such objects, or in any other manner to 
 engage, directly or indirectly, therein, as a partner, agent, or other- 
 wise ; or to ship, &c, any money, goods, or effects, to be employed in 
 accomplishing any of these unlawful objects ; or to command, or 
 embark on board, or contract for commanding, or embarking on board, 
 any vessel, &c, in any capacity, knowing that such vessel, &c, is 
 employed, or intended to be employed, in such unlawful objects ; or 
 to insure, or contract for insuring, any slaves, or other property, 
 employed, or intended to be employed, in accomplishing any of these 
 unlawful objects, (c) Pecuniary penalties and forfeitures are then 
 imposed upon persons offending, by engaging in such unlawful 
 objects, (d) And the statute then proceeds to subject certain offend- 
 ers to punishments of a more serious nature. 
 
 By sec. 9, ' If any subject or subjects of his Majesty, or any person or 
 persons residing, or being within any of the dominions, forts, settlements, 
 factories, or territories, now or hereafter belonging to his Majesty or 
 being in his Majesty's occupation or possession, or under the govern- 
 ment of the united company of merchants of England trading to the 
 East Indies, shall, except in such cases as are in and by this Act per- 
 mitted, (e) after the first day of January, one thousand eight hundred 
 and twenty -five, upon the high seas, or in any haven, river, creek, or 
 
 (a) This Act is repealed except ss. 2 to (d) Sees. 3, 4, 5, 6, 7, 8. 
 
 11, sec. 12 down to 'taken to be in full \e) These excepted cases are repealed 
 
 force,' ss. 39, 40, and 47. See 36 & 37 Vict, by the 3 & 4 Will. 4, c. 73, s. 12, which 
 
 c. 88, s. 30. abolishes slavery in the British colonies, 
 
 (h) See infra. plantations, and possessions abroad. 
 
 (c) Sec. 2. 
 
 American Note. 
 
 1 For the Acts of Congress relating to slave trade, see Revised Statutes of the 
 United States.
 
 cnAP. xix.] Of Dealing in Slaves. 465 
 
 place, where the admiral has jurisdiction, knowingly and wilfully 
 carry away, convey, or remove, or aid or assist in carrying away, con- 
 veying, or removing, any person or persons as a slave or slaves, or for 
 the purpose of his, her, or their being imported, or brought as a slave 
 or slaves, into any island, colony, country, territory, or place whatso- 
 ever, or for the purpose of his, her, or their being sold, transferred, 
 used, or dealt with, as a slave or slaves ; or shall, after the said first 
 day of January, one thousand eight hundred and twenty-five, except 
 in such cases as are in and by this Act permitted, (/) upon the high 
 seas, or within the jurisdiction aforesaid, knowingly and wilfully ship, 
 embark, receive, detain, or confine, or assist in shipping, embarking, 
 receiving, detaining, or confining on board any ship, vessel, or boat, 
 any person or persons, for the purpose of his, her, or their being 
 carried away, conveyed, or removed, as a slave or slaves, or for the 
 purpose of his, her, or their being imported or brought, as a slave or 
 slaves, into any island, colony, country, territory, or place whatsoever, 
 or for the purpose of his, her, or their being sold, transferred, used, or 
 dealt with, as a slave or slaves, then, and in every such case, the per- 
 son or persons so offending shall be deemed and adjudged guilty of 
 piracy, felony, and robbery, and being convicted thereof shall suffer 
 death, without benefit of clergy, and loss of lands, goods, and chattels, 
 as pirates, felons, and robbers upon the seas, ought to suffer.' 
 
 The 1 Vict. c. 91, sec. 1, recites the preceding section, and provides 
 that, after the 1st of October, 1837, no person convicted of any such 
 offence shall suffer death, but instead thereof shall be liable to trans- 
 portation {y) for life, or for any term not less than fifteen (h) years, or 
 imprisonment, with or without hard labour, in the common gaol or 
 house of correction, for any term not exceeding three years, and the 
 offender may be directed to be kept in solitary confinement for any 
 portion or portions of such imprisonment, or of such imprisonment 
 with hard labour, not exceeding one month at any one time, and not 
 exceeding three months in any one year, as to the Court in its discre- 
 tion shall seem meet, (i) 
 
 By the 5 Geo. 4, c. 113, s. 10, '(Except in such special cases as are 
 in and by this Act permitted, or otherwise provided for), (j) if any 
 persons shall deal or trade in, purchase, sell, barter, or transfer, or con- 
 tract for the dealing, or trading in, purchase, sale, barter, or transfer, 
 of slaves, or persons intended to be dealt with as slaves, or shall other- 
 wise than as aforesaid carry away or remove, or contract for the carry- 
 ing away or removing of slaves or other persons, as or in order to 
 their being dealt with as slaves, or shall import or bring, contract for 
 the importing or bringing, into any place whatsoever, slaves or other 
 persons, as or in order to their being dealt with as slaves ; or shall, 
 otherwise than as aforesaid, (j) ship, trans-ship, embark, receive, detain, 
 or confine on board, or contract for the shipping, trans-shipping, em- 
 barking, receiving, detaining, or confining on board of any ship, vessel, 
 or boat, slaves or other persons, for the purpose of their being carried 
 away or removed, as or in order to their being dealt with as slaves, 
 
 (/) See note (e) ante, p. 464. (i) See ss. 1 & 2 of the 1 Vict. c. 91, 
 
 \g) Penal servitude by the 20 & 21 Vict, ante, p. 258. 
 c 3, s. 2. {j) See note (e) ante, p. 464. 
 
 (h) As to the length of sentences of penal 
 servitude, see ante, p. 79. 
 
 VOL. I. — 30
 
 466 Of Dealing in Slaves. [book ii. 
 
 or shall ship, trans-ship, embark, receive, detain, or confine on board, 
 or contract for the shipping, trans-shipping, embarking, receiving, 
 detaining, or confining on board of any ship, vessel, or boat, slaves, or 
 other persons, for the purpose of their being imported, or brought 
 into any place whatsoever, as or in order to their being dealt with as 
 slaves ; or shall fit out, man, navigate, equip, despatch, use, employ, 
 let, or take to freight, or on hire, or contract for the fitting out, man- 
 ning, navigating, equipping, despatching, using, employing, letting, or 
 taking to freight, or on hire, any ship, vessel, or boat, in order to 
 accomplish any of the objects, or the contracts in relation to the objects, 
 which objects and contracts have hereinbefore been declared unlaw- 
 ful ; or shall knowingly and wilfully lend or advance, or become 
 security for the loan or advance, or contract for the lending or advanc- 
 ing, or becoming security for the loan or advance of money, goods, or 
 effects, employed or to be employed, in accomplishing any of the 
 objects, or the contracts in relation to the objects, which objects and 
 contracts have hereinbefore been declared unlawful ; or shall know- 
 ingly and wilfully become guarantee or security, or contract for the 
 becoming guarantee or security for agents employed, or to be employed, 
 in accomplishing any of the objects, or the contracts in relation to the 
 objects, which objects and contracts have hereinbefore been declared 
 unlawful, or in any other manner to engage, or to contract to engage, 
 directly or indirectly therein, as a partner, agent, or otherwise, or shall 
 knowingly and wilfully ship, trans-ship, lade, receive, or put on board, 
 or contract for the shipping, trans-shipping, lading, receiving, or putting 
 on board of any ship, vessel, or boat, money, goods, or effects, to be 
 employed in accomplishing any of the objects, or the contracts in rela- 
 tion to the objects, which objects and contracts have hereinbefore been 
 declared unlawful ; or shall take the charge or command, or navigate, 
 or enter and embark on board, or contract for the taking the charge or 
 command, or for the navigating, or entering and embarking on board 
 of any ship, vessel, or boat, as captain, master, mate, surgeon, or super- 
 cargo, knowing that such ship, vessel, or boat, is actually employed, or 
 is in the same voyage, or upon the same occasion, in respect of which 
 they shall so take the charge or command, or navigate, or enter and 
 embark, or contract so to do as aforesaid, intended to be employed in 
 accomplishing any of the objects, or the contracts in relation to the 
 objects, which objects and contracts have hereinbefore been declared 
 unlawful ; or shall knowingly and wilfully insure, or contract for the 
 insuring of any slaves, or any property, or other subject-matter en- 
 gaged or employed in accomplishing any of the objects, or the con- 
 tracts in relation to the objects, which objects and contracts have 
 hereinbefore been declared unlawful ; or shall wilfully and fraudu- 
 lently forge or counterfeit any certificate, certificate of valuation, sen- 
 tence or decree of condemnation or restitution, copy of sentence or 
 decree of condemnation or restitution, or any receipt (such receipts 
 being required by this Act), or any part of such certificate, certificate 
 of valuation, sentence or decree of condemnation or restitution, copy 
 of sentence, or decree of condemnation or restitution, or receipt as 
 aforesaid; or shall knowingly and wilfully utter or publish the same, 
 knowing it to be forged or counterfeited, with intent to defraud his 
 Majesty, his heirs, or successors, or any other person or persons what-
 
 chap, xix.] Of Dealing in Slaves. 467 
 
 soever, or any body politic or corporate ; then and in every such case 
 the person or persons so offending, and their procurers, counsellors, aid- 
 ers, and abettors, shall be, and are hereby declared to be felons, and 
 shall be transported (k) beyond seas for a term not exceeding four- 
 teen (I) years, or shall be confined and kept to hard labour for a term 
 not exceeding five years, nor less than three (to) years, at the discre- 
 tion of the Court before whom such offender or offenders shall be tried 
 and convicted.' 
 
 Sec. 11. ' (Except in such special cases, or for such special purposes 
 as are in and by this Act expressly permitted), (n) if any person shall 
 enter and embark on board, or contract for the entering and embark- 
 ing on board of any ship, vessel, or boat, as petty officer, seaman, 
 marine or servant, or in any other capacity not hereinbefore specially 
 mentioned, knowing that such ship, vessel, or boat, is actually em- 
 ployed, or is in the same voyage, or upon the same occasion, in respect 
 of which they shall so enter and embark on board, or contract so to 
 do as aforesaid, intended to be employed in accomplishing any of the 
 objects, or the contracts in relation to the objects, which objects and 
 contracts have hereinbefore been declared unlawful ; then and in 
 every such case the persons so offending, and their procurers, coun- 
 sellors, aiders, and abettors, shall be, and they are hereby declared to 
 be, guilty of a misdemeanor only, and shall be punished by imprison- 
 ment for a term not exceeding two years.' 
 
 Sec. 12. ' Nothing in this Act contained, making piracies, felonies, 
 robberies, and misdemeanors, of the several offences aforesaid, shall 
 be construed to repeal, annul, or alter the provisions and enactments 
 in this Act also contained, imposing forfeitures and penalties, or either 
 of them upon the same offences, or to repeal, annul, or alter, the reme- 
 dies given for the recovery thereof : but that the said provisions and 
 enactments, imposing forfeitures and penalties, shall in all respects be 
 deemed and taken to be in full force.' (o) 
 
 Sec. 40. 'If any person offending as a petty officer, seaman, marine, 
 or servant, against any of the provisions of the Act, shall within two 
 years after the offence committed, give information on oath before any 
 competent magistrate, against any owner or part-owner, or any cap- 
 tain, master, mate, surgeon, or supercargo, of any ship or vessel, who 
 shall have committed any offence against this Act, and shall give evi- 
 dence on oath against such owner, &c, before any magistrate or Court 
 before whom such offender may be tried ; or if such person so offend- 
 ing shall give information to any of his Majesty's ambassadors, min- 
 isters, &c, or other agents, so that any person owning such ship or 
 vessel, or navigating or taking charge of the same, as captain, master, 
 mate, surgeon, or supercargo, may be apprehended, such person so 
 giving information and evidence shall not be liable to any of the pains 
 or penalties under the Act incurred in respect of his offence ; and his 
 Majesty's ambassadors, ministers, &c, are required to receive any such 
 information, and to transmit the particulars thereof without delay, to 
 
 (£) Penal servitude by the 20 & 21 Vict. p. 73, and semble, that the imprisonment 
 
 c. 3, s. 2. may be for any time less than five years. 
 
 (I) As to the length of sentence of penal (n) See note (r) ante, p. 464. 
 
 servitude, see ante, p. 79. (o) The remainder of this section is re- 
 
 (m) See 9 & 10 Vict. c. 24, s. 1, ante, pealed by 36 & 37 Vict. c. 88.
 
 4G8 Of Dealing in Slaves. [book ii. 
 
 one of his Majesty's principal secretaries of state, and to transmit 
 copies of the same to the commanders of his Majesty's ships or ves- 
 sels, then being in such port or place.' 
 
 In February, 1845, the Felicidade, a Brazilian schooner, bound on a 
 voyage from the Brazils to Africa for the purpose of bringing back a 
 cargo of slaves, arrived off the African coast, and while she was hover- 
 ing within sixteen miles of the shore, and within six degrees of north 
 latitude, was observed by Her Majesty's ship of war Wasp, stationed 
 off the slave coast for the prevention of the slave trade, and then 
 under the command of Captain Usher, who, upon approaching the 
 Felicidade, manned two boats, and gave the command of them to 
 Lieutenant Stupart, one of his officers, with orders to board the Felici- 
 dade, and if she appeared to be fitted up for the slave trade to capture 
 her. Lieutenant Stupart, in obedience to these orders, went with the 
 two boats to the Felicidade. Cerquiera, the captain, immediately 
 surrendered, and he and all his crew, except Majavel and three others, 
 were conveyed on board the Wasp. At the time of her capture the 
 Felicidade was fitted up for the reception of a cargo of slaves, and was 
 within sixteen miles of the shore. The next day Captain Usher, hav- 
 ing removed from the Felicidade the three men who had been left with 
 Majavel, sent back Cerquiera to the Felicidade, manned her with six- 
 teen British seamen, and placed her under the command of Lieutenant 
 Stvipart, and directed him to steer a particular course in pursuit of a 
 vessel capable of being seen from the Wasp, although then invisible 
 from the Felicidade. Lieutenant Stupart accordingly steered that 
 course, and the next morning he descried the Echo, a Brazilian brigan- 
 tine, commanded by Serva. He chased her, and on coming up with 
 her the following night fired a pistol as a signal to bring to, got into the 
 jolly-boat, and hoisted British colours. The captain of the Echo hailed 
 the men in the boat, and asked who they were, and, upon being informed 
 that they were English, immediately set sail. Lieutenant Stupart 
 continued the chase, and overtook the Echo the next night within ten 
 miles of the African coast, when and where she surrendered. The 
 lieutenant had at that time under his command Mr. Palmer, a mid- 
 shipman, and sixteen British seamen ; he ordered Mr. Palmer and 
 eight of the seamen to take charge of the Echo during the night. On 
 Mr. Palmer going on board the Echo, he found in her Serva, Serva's 
 nephew, twenty-five men, and a cargo of four hundred and thirty-four 
 slaves, and by the direction of Lieutenant Stupart, the vessels being 
 at that time close together, sent Serva, his nephew, and eleven of the 
 crew to the Felicidade, where they remained during the night in the 
 custody of Lieutenant Stupart. During the chase and at the time of 
 the surrender, Lieutenant Stupart wore his uniform, and at the time 
 of the surrender and capture told Serva he was going to take them to 
 Her Majesty's ship the Wasp, for being engaged in the slave trade. 
 The Wasp had printed instructions on board. Lieutenant Stupart 
 had not any printed instructions on board the Felicidade, and did not 
 show any other authority than his uniform and the British ensign. 
 He had, however, boarded the Echo several times before, and to Serva 
 was well known as an officer in Her Majesty's navy. The slaves had 
 been shipped on board the Echo at Lagos. The next morning after 
 the capture Lieutenant Stupart took with him Serva's nephew to the
 
 cnAP. xix.] Of Dealing in Slaves. 469 
 
 Echo, and placed Mr. Palmer and nine British seamen under his 
 command on board the Felieidade, in order that he might take charge 
 of her and of Serva, Cerquiera, Majavel, and several others of the 
 Echo's crew. Within an hour afterwards Serva, Majavel, and some 
 of the rest conspired together to kill all the English on board the 
 Felieidade, and take her ; and in pursuance of that conspiracy rose 
 upon Mr. Palmer and his men, and after a short conflict succeeded 
 in killing them, Majavel having in the course of that conflict stabbed 
 and thrown overboard Mr. Palmer. Cerquiera, though solicited by 
 Serva to join in the plot, refused to do so, and endeavoured to dissuade 
 him from carrying it into execution ; and on the trial of an indict- 
 ment against Serva and others engaged with him in the transaction 
 for the murder of Mr. Palmer, at Exeter Assizes, Piatt, B., held that 
 the Felieidade was in the lawful custody of Her Majesty's officers, 
 that all on board that vessel were within Her Majesty's Admiralty 
 jurisdiction, and that if the prisoners plotted together to slay all the 
 English on board and run away with the vessel, and in carrying their 
 design into execution Majavel slew Mr. Palmer, and the others were 
 aiding and assisting in the commission of that act, they should be 
 found guilty of murder ; and upon a case reserved it was contended on 
 the part of the prisoners that both the Felieidade and Echo were 
 wrongfully taken, and that the prisoners had a right to regain their 
 freedom by any means in their power, and consequently that no felony 
 had been committed. It was answered on the part of the prosecution, 
 that the Felieidade and Echo were lawfully taken under the 5 Geo. 4, 
 c. 113, and 7 & 8 Geo. 4, c. 74, and the Portuguese and Brazilian 
 treaties as to slave trading ; and that the prisoners were in lawful 
 custody, and the Felieidade in the lawful custody of the Queen's 
 officers ; but it was held that there was a want of jurisdiction in an 
 English Court to try the murder committed on board the Felieidade ; 
 and if the lawful possession of that vessel by the British Crown, 
 through its officers, would be sufficient to give jurisdiction, there was 
 no evidence brought before the court to show that the possession was 
 lawful, (p) 
 
 Where some counts of an indictment on the 5 Geo. 4, c. 113, s. 10, 
 omitted the words ' knowingly and wilfully,' which are used in that 
 section in describing the offences charged in those counts, it was ad- 
 mitted that these counts were bad. (q) 
 
 Where a count stated that the prisoner in the fourth year of Queen 
 "Victoria, at London, and within the jurisdiction of the Central Crimi- 
 nal Court, did illegally and feloniously man, navigate, equip, despatch, 
 use and employ a certain ship called the Augusta, in order to ac- 
 complish a certain object, which (by the 5 Geo. 4, c. 113) was declared 
 unlawful, viz., to deal and trade in slaves ; and the three following 
 counts only varied from the first in describing the object of the several 
 acts charged to have been done by the prisoner differently, as in the 
 statute ; and it was objected that each count was bad as charging 
 distinct felonies, the statute making it a felony to fit out, man, navi- 
 
 (p) R. v. Serva, 2 C. & K. 53. 1 D. C. C. (q) R. v. Jennings, 1 Cox, C. C. 115. 
 
 104. Lord Uenmau, C. J., and Piatt, B., Wightman and Cresswell, JJ. 
 dissentientibus. See also the Life of Alder- 
 son, B., p. 99.
 
 470 Of Dealing in Slaves. [book ii. 
 
 gate, equip, despatch, use or employ any ship in order to accomplish 
 any of the objects thereby declared unlawful, and each count charging 
 the prisoner with having done all the acts before mentioned, each of 
 which would have been of itself a felony, if done with the object 
 stated in the Act ; it was held that each count contained a charge of 
 one felony only, the whole being alleged to have been done to accom- 
 plish one and the same single object, the essence of the felony consist- 
 ing in using the means described in the Act to accomplish that object. 
 It was also contended, that these counts were bad for not negativing 
 the exceptions in the Act of circumstances, which might render the 
 transaction lawful ; but it was held that these exceptions are virtually 
 repealed by the 3 & 4 Will. 4, c. 73, s. 12, and that for this purpose 
 the 5 Geo. 4, c. 113, s. 10, must be considered as if they had never 
 existed ; and as the offences in the indictment are charged to have 
 been committed in the reign of her present Majesty, they must neces- 
 sarily have been after the passing of the repealing Act. It was fur- 
 ther objected, that the indictment did not allege that the prisoner 
 was a British subject, or that the offence was committed within Her 
 Majesty's dominions ; but it was held that, as the offence was stated 
 in each count to have been committed at London, within the jurisdic- 
 tion of the Central Criminal Court, and therefore prima facie at least 
 within the district mentioned in the 3 & 4 Will. 4, c. 36. s. 2, the indict- 
 ment did in substance allege the offence to have been committed 
 within Her Majesty's dominions, (r) 
 
 Upon an indictment under sec. 10 for feloniously fitting out a ves- 
 sel for the purpose of dealing in slaves, it was held that the provisions 
 of the Act are not confined to acts done by British subjects in further- 
 ance of the slave trade in England or the British colonies, but apply 
 to acts done by British subjects in furtherance of that trade in places 
 not part of the British dominions. And in order to convict a party 
 who is charged with having employed and loaded a vessel for the pur- 
 pose of slave trading, it is not necessary to show that the vessel which 
 carried out the goods was intended to be used for bringing back slaves 
 in return ; but it was sufficient if there was a slave adventure, and the 
 vessel was in any way engaged in that adventure, (s) 
 
 Where a party residing in London was charged with having char- 
 tered a vessel and loaded goods on board, for the purpose of slave trad- 
 ing, it was held that slave trading papers found on board the vessel 
 when she was seized off the coast of Africa, but not traced in any way 
 to the knowledge of the prisoner, were not admissible in evidence 
 against him. (t) 
 
 The 6 & 7 Vict. c. 98, s. 1, recites sec. 2 of the 5 Geo. 4, c. 113, and 
 enacts ' that all the provisions of the said consolidated Slave Trade 
 Act hereinbefore recited and of this present Act shall, from and after 
 the coming into operation of this Act, be deemed to extend and apply 
 to British subjects wheresoever residing or being, and whether within 
 the dominions of the British Crown or of any foreign country ; and 
 all the several matters and things prohibited by the said consolidated 
 Slave Trade Act or by this present Act when committed by British 
 
 (r) R. v. Jennings, supra. (t) Ibid, 
 
 (s) R. v. Zulneta, 1 C. & K. 215. 
 Maule, J., and Wightman, J.
 
 chap, xix.] Of Dealing in Slaves. 471 
 
 subjects, whether within the dominions of the British Crown or in any 
 foreign country, except only as is hereinafter excepted, shall be deemed 
 and taken to be offences committed against the said several Acts 
 respectively, and shall be dealt with and punished accordingly : pro- 
 vided nevertheless, that nothing herein contained shall repeal or alter 
 any of the provisions of the said Act. 
 
 Sec. 2. 'All persons holden in servitude as pledges for debt, and 
 commonly called " pawns," or by whatsoever other name they may be 
 called or known, shall for the purposes of the said consolidated Slave 
 Trade Act,' and the 3 & 4 Will. 4, c. 73, ' and of this present Act, be 
 deemed and construed to be slaves or persons intended to be dealt 
 with as slaves.' 
 
 Sec. 5. •' In all the cases in which the holding or taking of slaves 
 shall not be prohibited by this or any other Act of Parliament, it shall 
 be lawful to sell or transfer such slaves, anything in this or any other 
 Act contained notwithstanding.' 
 
 Sec. 6. ' Nothing in this Act contained shall be taken to subject 
 to any forfeiture, punishment, or penalty any person for transferring 
 or receiving any share in any joint-stock company established before 
 the passing of this Act in respect of any slave or slaves in the 
 possession of such company before such time, or for selling any slave 
 or slaves which were lawfully in his possession at the time of passing 
 this Act, or which such persons shall or may have become possessed 
 of or entitled unto bond fide prior to such sale, by inheritance, devise, 
 bequest, marriage, or otherwise by operation of law.' 
 
 Sec. 4 provides for issuing a mandamus for the examination of wit- 
 nesses, and the receiving other proofs concerning matters charged in 
 any indictment of information in the Queen's Bench for offences 
 against the Acts committed in any British colony, settlement, planta- 
 tion, or territory. 
 
 There is nothing in the statutes to prohibit a contract by a British 
 subject for the sale of slaves lawfully held by him in a foreign coun- 
 try, where the possession and sale of slaves is legal. Where, there- 
 fore the defendants, British subjects, resident and domiciled in Great 
 Britain, being possessed of certain slaves in the Brazils, where the 
 purchase and holding of slaves is lawful, contracted with the plain- 
 tiff, a Brazilian subject, domiciled in the Brazils, to sell them to him, 
 to be used and employed there, and some of the slaves had been pur- 
 chased by the defendants in the Brazils after the passing of the 5 Geo. 
 4, c. 113, but before the 6 & 7 Vict. c. 98, for the purpose of being 
 employed, and they were employed, in certain mines there, of which 
 the defendants were the proprietors ; and the rest of the slaves were 
 their offspring, and were in the possession of the defendants before 
 the passing of the latter Act; it was held that the contract was 
 valid, (u) 
 
 The ' Slave Trade Act, 1873,' (v) consolidates the laws for the sup- 
 pression of the slave trade, and incorporates the above provisions of 
 the 5 Geo. 4, c. 113. 
 
 Sec. 2. ' In this Act the term " vessel " means any vessel used in 
 
 (u) Santos v. Illidge, 8 C. B. (N. S.) 861, (v) 36 & 37 Vict. c. 88. 
 
 in error : reversing the judgment of the 
 Common Pleas in 6 C. B. (N. S.) 841.
 
 472 Of Dealing in Slaves. [book h. 
 
 navigation. The term "British possession" means any plantation, 
 territory, settlement, or place situate within her Majesty's dominions, 
 and not forming part of the United Kingdom. The term "Governor" 
 includes the officer for the time being administering the government of 
 any colony, and where there is a local governor or lieutenant-governor 
 under a governor-general, means the local governor or lieutenant- 
 governor. The term " foreign state " includes any foreign nation, 
 people, tribe, sovereign, prince, chief, or headman. The term " vessel 
 of a foreign state " means a vessel which is justly entitled to claim the 
 protection of the flag of a foreign state, or which would be so entitled 
 if she did not lose such protection by being engaged in the slave 
 trade. The term " treaty " includes any convention, agreement, en- 
 gagement, or arrangement. The term " slave trade," when used in 
 relation to any particular treaty, does not include anything declared 
 by such treaty not to be comprised in the term or in such treaty. 
 The term " Vice- Admiralty Court " does not include any Vice-Admi- 
 ralty Court which for the time being has under its commission a 
 limited jurisdiction only in matters relating to the slave trade. The 
 term " British slave court " means the High Court of Admiralty of 
 England, every Vice-Admiralty Court in her Majesty's dominion out 
 of the United Kingdom, and every East African Court for the time 
 being within the meaning of the Slave Trade (East African Courts) 
 Act, 1873. The term "slave court" means every British slave court, 
 every mixed commission or court established under any existing 
 slave trade treaty, and the court of any foreign state having jurisdic- 
 tion to try and condemn a vessel engaged in the slave trade. The 
 term " existing slave trade treaty " means a treaty made by or on 
 behalf of her Majesty or her royal predecessors with any foreign state 
 for the more effectual suppression of the slave trade and in force at 
 the passing of this Act.' 
 
 The third and fourth sections provide for the seizure of ships sus- 
 pected (w) of being engaged in or fitted out for the slave trade, and for 
 the seizure of vessels, slaves, persons, goods, and effects which may be 
 forfeited under the above provisions. Sections 5-8 provide the tri- 
 bunal which is to try the right of seizure. Sections 9 and 10 provide 
 for the disposal of vessels and slaves which have been seized. Sec- 
 tions 11-16 relate to bounties. By section 17 persons authorized to 
 make seizures are to have the benefit of the protection granted to per- 
 sons acting under her Majesty's customs. By section 18 the pendency 
 of proceedings under the Act in certain cases is made a bar to other 
 legal proceedings. Sections 19-21 apply to proceedings in the Court 
 of Admiralty with respect to costs. 
 
 By sec. 22 any person who wilfully gives false evidence in any pro- 
 ceeding taken in pursuance of this Act in any slave court shall be 
 guilty of an offence against this Act, and shall be liable to the like 
 penalty as if he had been guilty of perjury, or in a British possession 
 of the offence by whatever name called which if committed in Eng- 
 land would be perjury. 
 
 By sec. 23 the registrar of a slave court is to make returns of cases 
 adjudged in such court. 
 
 By sec. 24, ' This Act shall be construed as one with the enactments 
 
 (w) As to reasonable suspicion see R. v. Casaca, 5 Ap. Cas. s. 48.
 
 Ciiap. xix.] Of Dealing in Slaves. 47<j 
 
 of the Slave Trade Act, 1824 (5 Geo. 4, c. 113, ante, p. 464), and any 
 enactments amending the same so far as they are in force at the time 
 of the passing of this Act, and are not repealed by this Act. And the 
 expression " this Act," when used in this Act, shall include those 
 enactments.' 
 
 By sec. 25, 'All pecuniary forfeitures and penalties imposed by the 
 said enactments with which this Act is to be construed as one, may 
 be sued for, prosecuted, and recovered in any court of record or of 
 Vice-Admiralty in any part of her Majesty's dominions wherein the 
 offence was committed, or where the offender may be, in like manner, 
 as any penalty or forfeiture incurred in the United Kingdom, under 
 any Act for the time being in force relating to her Majesty's customs, 
 or (in the case of the High Court of Admiralty, or of a court of Vice- 
 Admiralty), in like manner as any vessel seized in pursuance of this 
 Act. Such pecuniary penalties and forfeitures shall, subject to the 
 express provisions of the said enactments, be paid and applied in like 
 manner as the net proceeds of a vessel seized otherwise than by the 
 commander or officer of one of her Majesty's ships, or of the cruiser of 
 a foreign state.' 
 
 Trial of offences against the Act. — By sec. 26, ' Any offence against 
 this Act, or the said enactments with which this Act is to be con- 
 strued as one, or otherwise in connection with the slave trade, shall, 
 for all purposes of and incidental to the trial and punishment of a 
 person guilty of such offence, and all proceedings and matters pre- 
 liminary and incidental to and consequential on such trial and pun- 
 ishment, and for all purposes of and incidental to the jurisdiction of 
 any Court, constable, and officer with reference to such offence, be 
 deemed to have been committed, either in the place in which the 
 offence was committed or in the county of Middlesex, or in any place 
 in which the person guilty of the offence may for the time being be 
 either in her Majesty's dominions, or in any foreign port or place in 
 which her Majesty has jurisdiction, and the offence may be described 
 in any indictment or other document relating thereto, as having being 
 committed at the place where it was wholly or partly committed ; or 
 as having been committed on the high seas, or out of her Majesty's 
 dominions, and the venue or local description in the margin may be 
 that of the place in which the trial is held.' 
 
 Where any such offence is commenced at one place and completed 
 at another, the place at which such offence is to be deemed to have 
 been committed shall be either the place where the offence was com- 
 menced or the place where the offence was completed. 
 
 Where a person being in one place is accessory to or aids or abets 
 in any such offence committed in another place, the place at which 
 such offence is to be deemed to have been committed shall be either 
 the place in which the offence was actually committed or the place 
 where the offender was at the time of his being so accessory aiding or 
 abetting. 
 
 Where it appears to any Court, or the judge of any Court having 
 jurisdiction to try any such offence, that the removal of an offender 
 charged with such offence to some other place in her Majesty's domin- 
 ions for trial would be conducive to the interest of justice, such Court 
 or judge may, by warrant or instrument in the nature of a warrant,
 
 474 Of Dealing in Slaves. [book ii. 
 
 direct such removal, and such offender may be removed and tried ac- 
 cordingly. And sec. 268 of the Merchant Shipping Act, 1854, shall 
 apply to the removal of an offender under this section in the same 
 manner as if the term ' consular officer ' in that section included the 
 Court or judge making such warrant or instrument. 
 
 By sec. 28 the Act applies to all cases of vessels, slaves, goods, and 
 effects seized and adjudicated upon by any slave court, whether before 
 or after the passing of the Act. Sec. 29 extends the Act to future 
 treaties with any foreign state in relation to the slave trade if an 
 order in council be obtained for that purpose.
 
 CHAPTER THE TWENTIETH. 
 
 OF FORESTALLING, REGRATING, AND INGROSSING, AND OF 
 
 MONOPOLIES. 
 
 Every practice or device by act, conspiracy, words, or news, to 
 enhance the price of victuals or other merchandize, has been held to 
 be unlawful ; as being prejudicial to trade and commerce, and inju- 
 rious to the public in general, (a) Practices of this kind came under 
 the notion of forestalling ; which anciently comprehended, in its sig- 
 nification, regrating and ingrossing, and all other offences of the like 
 nature, (b) Spreading false rumours, buying things in the market be- 
 fore the accustomed hour, or buying and selling again the same thing 
 in the same market, are offences of this kind, (c) Also if a person 
 within the realm bought any merchandize in gross, and sold the same 
 again in gross, it was considered an offence of this nature, on the 
 ground that the price must be thereby enhanced, as each person 
 through whose hands it passed would endeavour to make his profit 
 of it. (d) So the bare ingrossing of a whole commodity, with an in- 
 tent to sell it at an unreasonable price, was an offence at the common 
 law ; for if such practices were allowed, a rich man might ingross into 
 his hands a whole commodity, and then sell it at what price he should 
 think fit. (e) 
 
 The offences of forestalling, regrating, and ingrossing were for a con- 
 siderable period prohibited by statutes ; but the beneficial tendency of 
 such statutes was doubted; and at length by the 12 Geo. 3, c. 71, they 
 were repealed, as being detrimental to the supply of the labouring 
 and manufacturing poor of the kingdom. But forestalling, regrating, 
 and ingrossing continued offences at common law until the 7 & 8 Vict. 
 c. 24, s. 1, which enacts that ' the several offences of badgering, engross- 
 ing, forestalling, and regrating be utterly taken away and abolished, 
 and that no information, indictment, suit, or prosecution, shall lie 
 either at common law or by virtue of any statute, or be commenced 
 or prosecuted against any person for or by reason of any of the said 
 offences or supposed offences.' 1 
 
 (a) 3 Inst. 196. Bac. Abr. tit. Forestall- it was held that any merchant, whether 
 i n 9- subject or foreigner, bringing victuals or any 
 
 (b) 3 Inst. 195. Bac. Abr. tit. Forestall- other merchandize into the realm, may sell 
 ing (A). it in gross. 3 Inst. 196. 
 
 (c) 1 Hawk. P. C. c. 80, s. 1. (e) 1 Hawk. P. C. c. 80, s. 3. 3 Inst. 
 
 (d) 3 Inst. 196. Bac. Abr. tit. Forestall- 196. 
 ing (A). 1 Hawk. P. C. c. 80, s. 3. But 
 
 American Note. 
 1 In America it would seem that there nizing common law. It appears that English 
 have been no statutes forbidding these statutes before the Declaration of Indepen- 
 offences, and no statute abolishing the dence are considered as common law generally 
 common-law offences, and therefore such in America. Bishop i. s. 520. 
 offences may be committed in states recog-
 
 476 Of Forestalling, Etc., and of Monopolies, [book ii. 
 
 Sec. 4. ' Nothing in this Act contained shall be construed to apply 
 to the offence of knowingly and fraudulently spreading, or conspiring 
 to spread, any false rumour, with intent to enhance or decry the 
 price of any goods or merchandize, or to the offence of preventing, or 
 endeavouring to prevent, by force or threats, any goods, wares, or 
 merchandize being brought to any fair or market, but that every such 
 offence may be inquired of, tried, and punished as if this Act had not 
 been made.' 
 
 The attempt by false reports to enhance or abate the price of our 
 native commodities is punishable by fine and ransom at common 
 law. (/) And where certain persons came to Coteswold, and said, in 
 deceit of the people, that there were such wars beyond the seas that 
 wool could not pass or be carried beyond sea, whereby the price of 
 wools was abated ; and presentment thereof being made, the defend- 
 ants, having appeared, were, upon their confession, put to fine and 
 ransom, (g) And there can be no doubt that the offences excepted by 
 sec. 4 of the 7 & 8 Vict. c. 24, are punishable like other common-law 
 misdemeanors. (Ji ) 
 
 Monopolies are much the same offence in other branches of trade 
 that ingrossing is in provisions : being a licence or privilege allowed 
 by the King for the sole buying and selling, making, working, or using 
 of anything whatsoever ; whereby the subject in general is restrained 
 from that liberty of manufacturing or trading which he had before, (i) 
 They are said to differ only in this, — that monopoly is by patent from 
 the King, ingrossing by the act of the subject, between party and 
 party ; and have been considered as both equally injurious to trades 
 and the freedom of the subject, and therefore equally restrained by 
 the common law. (j) By the common law, therefore, those who are 
 guilty of this offence are subject to fine and imprisonment, the offence 
 being malum in se, and contrary to the ancient and fundamental laws 
 of the kingdom ; and it is said that there are precedents of prosecu- 
 tions of this kind in former days, (k) And all grants of this kind, 
 relating to any known trade, are void by the common law. (/) 
 
 But, notwithstanding their illegality, monopolies had been carried 
 to an enormous height during the reign of Queen Elizabeth ; the evil 
 was, however, in a great measure remedied by the 21 Jac. 1, c. 3, 
 which declares them to be contrary to law, and void (except as to 
 patents not exceeding the grant of fourteen years to the authors of 
 new inventions ; and except also patents concerning printing, salt- 
 petre, gunpowder, great ordnance, and shot) ; and monopolists are 
 punished with the forfeiture of treble damages and double costs to 
 those whom they attempt to disturb, {m) 
 
 (/) 3 Inst. 196, referring to 23 Ed. 3, (&) 3 Inst. 181. 2 Inst. 47, 61. Baa 
 
 c. 6. 13 Rich. 2, c. 8, Inter leges Ethelstani, Abr. tit. Monopoly (A), note (b). 
 a 12. (I) 1 Hawk. P. C. c. 79, s. 1. 
 
 (g) 43 Ass. pi. 38. 3 Inst. 196. (m) Sec. 4. And see further upon the 
 
 (h) Ante, p. 475. subject of monopolies, 1 Hawk. P. C. c. 79. 
 
 (i) 4 Blac. Com. 158. 3 Inst. 181. Bac. Abr. tit. Monopoly. 
 
 \j ) Skin. 169.
 
 CHAPTER THE TWENTY-FIRST. 
 
 OF MAINTENANCE AND CHAMPERTY, AND OF BUYING AND 
 SELLING PEETENDED TITLES. 1 
 
 Maintenance seems to signify an unlawful taking in hand or 
 upholding of quarrels or sides, to the disturbance or hindrance of 
 common right. This may be where a person assists another in his 
 pretensions to lands, by taking or holding the possession of them for 
 him by force or subtlety, or where a person stirs up quarrels and suits 
 in relation to matters wherein he is in no way concerned ; (a) or it 
 may be where a person officiously intermeddles in a suit depending in 
 a court of justice, and in no way belonging to him, by assisting either 
 party with money, or otherwise, in the prosecution or defence of such 
 suit, (b) Where there is no contract to have part of the thing in suit, 
 the party so intermeddling is said to be guilty of maintenance gener- 
 ally ; but if the party stipulate to have part of the thing in suit, his 
 offence is called champerty, (c) 
 
 As to maintenance, it is laid down that whoever assists another 
 with money to carry on his cause, as by retaining one to be of counsel 
 for him, or otherwise bearing him out in the whole or part of the 
 expense of the suit, may properly be said to be guilty of an act of 
 maintenance. (jT) It has been said that no one can be guilty of main- 
 tenance in respect of any money given by him to another for the 
 purposes of an intended suit, before any suit is actually commenced ; 
 but it should seem that this, if not strictly maintenance, must be 
 equally criminal at common law. (e) And a person may be as much 
 
 (a) Co. Lit. 368 b. Inst. 208, 212, 213. s. 3. The abuse of legal proceedings by 
 1 Hawk. P. C. c. 83, ss. 1, 2. Bac. Abr. tit. oppressive combinations to carry them into 
 Maintenance. This kind of maintenance is effect is observed by Mr. Hume to have 
 called in the books ruralis, in distinction to speedily appeared upon the establishment of 
 another carried on in courts of justice, and the laws in the time of Edward I. He says, 
 therefore called curialis. It is punishable ' instead of their former associations for 
 at the King's suit by fine and imprisonment, robbery and violence, men entered into 
 whether the matter in dispute any way de- formal combinations to support each other 
 pended in plea or not ; but is said not to be in law suits ; and it was found requisite to 
 actionable. check this iniquity by Act of Parliament.' 
 
 (b) 1 Hawk. P. C. c. 83, s. 3. Bac. Abr. 2 Hume, 320, referring to the statute of 
 tit. Maintenance. 4 Blac. Com. 134. This conspirators, — Edw. I. 
 
 kind of maintenance is called curialis. See (d) 1 Hawk. P. C. c. 83, s. 4, and the 
 
 ante note (a). numerous authorities cited in the margin. 
 
 (c) Co. Lit. 368. 1 Hawk. P. C. c. 83, (e) Bac. Abr. tit. Maintenance (A). 1 
 
 American Note. 
 
 1 The offences of maintenance, cham- nance or champerty as such ; but in some 
 
 perty, and the buying and selling of other States the Courts do not think the 
 
 pretended titles appear not to be offences at English law is applicable to America. In 
 
 common law in some of the American States, most States it would seem that the English 
 
 In some States there is no common law at all, law is in substance followed. See Bishop, 
 
 and therefore of course there is no mainte- Vol. ii. s. 130, 131, and note 2, s. 136-138.
 
 478 Of Maintenance and Champerty . [book ii. 
 
 guilty of maintenance for supporting another after judgment, as for 
 doing it while the plea is pending, because the party grieved may be 
 thereby discouraged from bringing a writ of error or attaint. (/) 
 
 It has also been said, that he who by his friendship or interest 
 saves a person that expense in his cause which he might otherwise be 
 put to, or gives, or but endeavours to give, any other kind of assist- 
 ance to a party in the management of his suit, is guilty of mainten- 
 ance. {y) And it lias been said also, that he who gives any public 
 countenance to another in relation to such suit will come under the 
 like notion ; as if a person of great power and interest says publicly 
 that he will spend a sum of money on one side, or that he will give a 
 sum of money to labour the jury, whether in truth he spend anything 
 or not ; or where such a person comes to the bar with one of the par- 
 ties, and stands by him while his cause is tried, whether he says any- 
 thing or not ; for such practices not only tend to discourage the other 
 party from going on with his cause, but also to intimidate juries from 
 doing their duty, (h) But it seems that a bare promise to maintain 
 another is not in itself maintenance, unless it be either in respect of 
 the power of the person who makes it, or of the public manner in 
 which it is made, (i) A man is not guilty of an act of maintenance, 
 by giving another friendly advice as to his proper remedy at law, or 
 as to the counsellor or attorney likely to do his business most 
 effectually, (j) Where a member of Parliament procured an informer 
 to sue another member of Parliament for penalties, having sat and 
 voted without being duly cpualified, and gave him an indemnity against 
 all costs and expenses, it was held that the member and the informer 
 had no such common interest in the penalty sued for as to be a 
 defence in an action for maintenance, (k) 
 
 Hawk. P. C. c. 83, s. 12, where it is said, as to which the plaintiff was acquitted ; the 
 that if it plainly appear that the money w T as Court of Queen's Bench held that no cause 
 given merely with a design to assist in the of action appeared, the declaration not 
 prosecution or defence of an intended suit, showing maintenance (as the action appeared 
 which afterwards is actually brought, surely not to have been commenced when the de- 
 it cannot but be as great a misdemeanor in fendant interfered), and not alleging want 
 the nature of the thing and equally criminal of reasonable and probable cause for the 
 at common law as if the money were given action. Flight v. Leman, 4 Q. B. 883. A 
 after the commencement of the suit ; though declaration for maintenance need not charge 
 perhaps it may not in strictness come under the maintenance to have been committed 
 the notion of maintenance. against the form of the statute — it being a 
 (/) 1 Hawk. P. C. c. 83, s. 13. Bac. wrongful act at common law, and the statutes 
 Abr. tit. Maintenance (A). Where a deck- relating to maintenance being only declara- 
 ration alleged that the defendant unlawfully, tory of the common law with additional 
 maliciously, and without reasonable or prob- penalties. Nor need the declaration allege 
 able cause, and without having any interest that the defendant was not interested in the 
 in the suit therein mentioned, instigated action maintained ; for if he was that is 
 and stirred up a pauper to commence and matter to be pleaded by him. Pechell v. 
 prosecute an action against the plaintiff, by Watson, supra. 
 
 reason whereof the pauper did commence and (g) Bro. tit. Maintenance, 7, 14, 17, &c. 
 
 prosecute such action, whereby the plaintiff 1 Hawk. P. C. c. 83, ss. 5, 6. But this 
 
 was put to great trouble and vexation, and would not be acted upon at the present day. 
 
 obliged to lay out a large sum in the defence See per Buller, J., in Master v. Miller, 4 T. P.. 
 
 of such action ; the Court of Exchequer held 340. 
 
 that the declaration was good. Pechell v. (A) 1 Hawk. P. C. c. 83, s. 7. Bac. Abr. 
 
 Watson, 8 M. & W. 691. But where a tit. Maintenance (A). 
 
 declaration alleged that the defendant un- (/') 1 Hawk. P. C. c. 83, s. 8. 
 
 lawfully and maliciously did procure. (/) Ibid. s. 9. Bac. Abr. tit. Mainte- 
 
 instigate, and stir up one Thomas to com- nance (A). 
 
 mence and prosecute an action against the (k) Bradlaugh v. Xewdegate, 11 Q. B. 
 
 plaintiff, wherein certain issues were joined D. 1.
 
 chap. xxi.J Of Maintenance and Champerty. 479 
 
 But there are many acts, in the nature of maintenance, which become 
 justifiable from the circumstances under which they are done. They 
 may be justifiable — 1, in respect of an interest in the thing in variance ; 
 2, in respect of kindred or affinity; 3, in respect of other relations, 
 as that of lord and tenant, master and servant ; 4, in respect of charity ; 
 5, in respect of the profession of the law. 
 
 It seems clear that not only those who have an actual interest 
 in the thing in variance, as those who have a reversion expectant on 
 an estate-tail, or a lease for life or years, &c, but also those who 
 have a bare contingency of an interest in the lands in question, 
 which possibly may never come in esse, and even those who by the 
 act of God have the immediate possibility of such an interest, as heirs 
 apparent, or the husbands of such heirs, though it be in the power 
 of others to bar them, may lawfully maintain another in an action 
 concerning such lands : and if a plaintiff in an action of tres- 
 pass alien the lands, the alienee may produce evidence to prove 
 that the inheritance at the time of the action was in the plain- 
 tiff, because the title is now become his own. (/) Also he who is 
 bound to warrant lands may lawfully maintain the tenant in the 
 defence of his title, because he is bound to render other lands to the 
 value of those that shall be evicted. And he who has an equitable 
 interest in lands or goods, or even in a chose in action, as a cestui que 
 trust, or a vendee of lands, &c, or an assignee of a bond for a good 
 consideration, may lawfully maintain a suit concerning the thing in 
 which he has such an equity, (to) And wherever any persons claim a 
 common interest in the same thing, as in a way, churchyard, or 
 common, &c, by the same title, they may maintain one another in a 
 suit concerning such thing, (n) 
 
 Where, on the trial of an action brought to recover the amount of 
 an attorney's bill, in which there was a plea of maintenance, it ap- 
 peared that Jesus College, Oxford, had given notice to set out tithes 
 in kind to all the owners of old inclosures in the parish of Treding- 
 ton, who had, as far as living memory went, paid certain sums of 
 money in lieu of tithes for the old inclosures, and that, at a meeting 
 of the owners of such old inclosures, it was agreed by them that they 
 should defend any suit or suits, which should be instituted by Jesus 
 College, to enforce the payment of tithes, and that the expenses of 
 such defence should be paid by the owners in proportion to their 
 interests, as ascertained by the poor rate ; the owners considering that 
 if Jesus College should succeed in one suit as to any part of the old 
 inclosures, that would invalidate the payments as to all ; and Jesus 
 College afterwards filed seven bills in the Exchequer, and commissions 
 were issued for the examination of witnesses in each suit, and deposi- 
 tions taken in all the suits ; but in one suit a greater number of depo- 
 sitions than in any other, and which related to there having been 
 no payment of any tithe for the old inclosures, and there being a dis- 
 tinction in this respect as far as living memory went, between the old 
 and the new inclosures ; and these depositions by consent had been 
 
 (/) Bac. Abr. tit. Maintenance (B). 1 Buller, J., in Master v. Miller, 4 T. R. 340, 
 Hawk. P. C. c. 83, ss. 14, 15, &c. et seq. 
 
 (m) Id. ibid., and see the judgment of (n) 1 Hawk. P. C. c. 83, ss. 24, 25. Bac. 
 
 Abr. tit. Maintenance (B).
 
 480 Of Maintenance and Champerty. [book ii. 
 
 used in all the suits ; and nine issues having been directed to be tried, 
 and the jury having retired to consider their verdict in the first, it was 
 agreed that the verdicts in the other issues should be entered accord- 
 ing to the finding of the jury in the first ; but such jury was discharged 
 without finding any verdict, and decrees were afterwards made, estab- 
 lishing some of the moduses and quashing others ; it was held that 
 the agreement to defend the suits was not maintenance ; for, although 
 the payments were not the same per acre, and although the interest 
 in each payment was separate, yet all the owners of the old inclosures 
 had an interest in supporting the moduses over all the old inclosures, 
 and consequently the agreement was not officiously entered into in 
 order to defend the suits, (o) 
 
 Where a count stated that Yeoman had deposited certain money in 
 the hands of the plaintiff, which the plaintiff had delivered to the de- 
 fendant at his request, and that Yeoman threatening to bring an action 
 against the plaintiff to recover the money, and thereupon, in considera- 
 tion that the plaintiff, at the request of the defendant, would defend 
 any action Yeoman should commence, the defendant undertook to 
 save the plaintiff harmless ; that Yeoman brought an action to re- 
 cover the money, and that the plaintiff defended it with the privity 
 and consent of the defendant ; it was held that this was not 
 maintenance, (p) 
 
 Whoever is of kin, or godfather to either of the parties, or related 
 by any kind of affinity still continuing, may lawfully stand by at the 
 bar and counsel him, and pray another to be of counsel for him ; but 
 cannot lawfully lay out his money in the cause, unless he be either 
 father, or son, or heir-apparent, to the party, or husband of such an 
 heiress, (q) 
 
 Much of the law relating to the maintenance which a lord may 
 give to his tenant would hardly be applicable at the present time. It 
 seems to have been the better opinion that the lord might justify lay- 
 ing out his own money in defence of his tenant's title, where the 
 lands were originally derived from the lord, but that he could not 
 maintain the tenant in respect of lands not holden of himself, (r) 
 
 With respect to the maintenance which a master may give to his 
 servant, it has been held that he may pray one to be of counsel for him, 
 and may go with him, and stand with him, and aid him at the trial : 
 also it is said, that if the servant be arrested, the master may assist him 
 with money to keep him from prison, that he may have the benefit of his 
 service ; but he cannot safely lay out money for the servant in a real 
 action, unless he have some of his wages in his hands ; but those, with 
 the servant's consent, he may safely disburse, (s) And a servant can- 
 not lawfully lay out any of his own money to assist the master in 
 his suit, (t) 
 
 Any one may lawfully give money to a poor man to enable him to 
 carry on his suit : and any one may safely go with a foreigner, who 
 cannot speak English, to a counsellor and inform him of his case, (w) 1 
 
 (o) Findon v. Parker, 11 M. & W. 675, (r) 1 Hawk. P. C. c. 83, s. 29. 
 
 and MSS. C. S. G. ' "'" (s) Bro. tit. Maintenance, 44, 52. 1 
 
 fp) Williamson v. Henley, 6 Bing. 299. Hawk. P. C. c. 83, ss. 31, 32, 33. 
 
 (q) Bac. Abr. tit. Maintenance (B). 1 (t) 1 Hawk. id. s. 34. 
 
 Hawk. P. C. c. 83, s. 26. (u) Bro. tit. Maintenance, 14. Bac. Abr. 
 
 American Note. 
 1 This is so also in America. S. v. Chitty, 1 Bailey, 401.
 
 chap, xxi.] Of Maintenance and Champerty. 481 
 
 A counsellor may lawfully set forth his client's cause to the best 
 advantage ; but can no more justify giving him money to maintain his 
 suit, or threatening a juror, than any other person. An attorney, also, 
 when specially retained, may lawfully prosecute or defend an action, 
 and lay out his own money in the suit, (v) 
 
 Where there was one attorney on the record, and another attorney 
 became before the trial really and substantially the attorney for the 
 client in the conduct of the suit, and the latter, after verdict, but be- 
 fore judgment, bond fide purchased from his client the benefit of his 
 verdict, it was held that the transaction being a purchase of the sub- 
 ject-matter of the suit by the attorney, was void ; for the attorney 
 was to be considered as the attorney having the management of the 
 cause, and the purchase was in effect a purchase by the attorney in 
 the cause of the subject-matter of it pendente lite, not for the purpose 
 of enabling them to carry on the suit, but because they wanted money ; 
 and independently of the statutes restraining the purchase of prop- 
 erty in suit, it had been held, in several cases, that no attorney can 
 be permitted to purchase anything in litigation, of which litigation he 
 has the management, (w) 
 
 A contract whereby an attorney stipulates with a client to receive, 
 in consideration of the large advances requisite to conducting the pro- 
 ceedings to a successful issue, over and above his legal costs, a sum 
 which should be commensurate with his outlay and exertions and 
 with the benefit resulting to the client, is unlawful. The contract 
 would have been directly in violation of the laws against mainte- 
 nance, if the stipulation had been that the plaintiff, as attorney in the 
 suit, in consideration of his advancing the funds necessary for carry- 
 ing on the litigation, should receive a portion of the proceeds or prop- 
 erty to be recovered ; and the only difference between the two cases 
 is that, in the former, the party would have the security of the prop- 
 erty ; whereas here he has only the personal security of the client. 
 But if he be a solvent man, he gets a share of the property by another 
 mode, viz., by suing him, and obtaining judgment, (a?) An agreement 
 to be carried into effect in this country, which would be void on the 
 ground of champerty if made here, is not the less void because it is 
 made in a foreign country, where such a contract would be legal. 
 Where, therefore, an attorney entered into an agreement in France 
 with a French subject to sue for a debt due to the latter from a person 
 residing here, whereby the attorney was to receive by way of recom- 
 pense a moiety of the amount recovered ; it was held that this 
 agreement was void for champerty, (y) If any act were done under 
 such an agreement in England, the party doing it would be indict- 
 able here, (z) 
 
 But there is a clear distinction between the assignment by a client 
 to an attorney of the subject-matter of a suit by way of security, and 
 an absolute sale of the subject-matter of the suit. In the latter case 
 
 tit. Maintenance (B) 4. 1 Hawk. P. C. c. 83, (w) Simpson v. Lamb, 7 E. & B. S4. 
 
 ss. 36, 37. The charity need not apparently (x) Earle v. Hopwoorl, 9 C. B. (X. S.) 
 
 be exercised on reasonable grounds. Harris 566 ; 30 L. J. C. P. 217. See Price v. 
 
 v. Brisco, 17 Q. B. D. 504. Beattie, 32 L. J. Ch. 734. 
 
 {v) 2 Inst. 564. Bac. Abr. tit. Mainte- , (#) Grell v. Levy, 16 C. B. (X. S.) 73. 
 
 nance (B) 5. 1 Hawk. P. C. c. 83, ss. 28, ' (z) R. v. Brisac, 4 East, R. 163. 
 29, 30. 
 
 vol. i. — 31
 
 482 Of Maintenance and Champerty. [book ii. 
 
 the attorney might have an opportunity of imposing on his client, 
 from his superior knowledge of the value of that subject-matter, and 
 might after the purchase take improper means to increase the value. 
 But a mere assignment, by way of security, is open to no such danger, 
 and may be very advantageous to the client. (a) Where, therefore, a 
 client having recovered a verdict in an ejectment, by an indenture, 
 reciting that he was indebted to his attorney in 100/. for money lent 
 and for work done as an attorney, and was unable to pay it, and had 
 agreed to secure it, granted the crop of potatoes then growing upon 
 the close, which was the subject of the action, and all other effects 
 thereon, until payment of the 100/. and interest, with a proviso that 
 if the client paid the 100/. and the interest on a certain day, the 
 indenture should be void ; and the indenture also contained a power 
 to the attorney, on default of payment, to enter, carry away, and dis- 
 pose of the effects assigned ; provided that, if he sold the property, he 
 should hold the surplus, after paying the expenses and reimbursing 
 himself, in trust for the client ; it was held that this deed could not be 
 impeached on the ground of either champerty or maintenance, (h) 
 
 But no counsellor or attorney can justify using any deceitful prac- 
 tice in maintenance of a client's clause : and they will be liable to be 
 punished for misdemeanors in this respect by the common law, and 
 also by the statute of Westm. 1, c. 29. (c) In the construction of 
 this statute it has been holden that all fraud and falsehood, tending 
 to impose upon or abuse the justice of the King's courts, are within 
 the purview of it. 
 
 Champerty. — Champerty is a species of maintenance, being a bar- 
 gain with a plaintiff or defendant campum partire, to divide the land 
 or other matter sued for between them, if they prevail at law ; where- 
 upon the champertor is to carry on the party's suit at his own 
 expense, (d) It is defined in the old books to be, the unlawful main- 
 tenance of a suit, in consideration of some bargain to have part of 
 the thing in dispute, or some profit out of it. (e) 
 
 The statute of Westminster 1 (3 Edw. 1), c. 25, enacts, that 'no 
 officers of the King, by themselves nor by others, shall maintain pleas, 
 suits, or matters, hanging in the King's courts, for lands, tenements, or 
 other things, for to have part or profit thereof, by covenant made be- 
 tween them ; and he that doth shall be punished at the King's pleasure.' 
 By the Courts mentioned in this statute it has been held that courts 
 of record only are intended ; and it has also been held that under the 
 word covenant all kinds of promises and contracts of this kind are 
 included ; that maintenance in personal actions, to have part of the 
 debt or damages, is as much within the statute as maintenance in real 
 
 (a) Per Lord Campbell, C. J., Anderson ancy of an estate, in case the vendor became 
 
 v. Radcliffe, E. B. & E. 806, 29 L. J. Q. B. devisee of it, was held lawful. 
 128, citing Wood v. Downes, 18 Ves. 120. (c) 2 Inst. 215. Bac. Abr. and Hawk. 
 
 {b) Anderson v. Radcliffe, supra,' a&rmed supra (u). The statute enacts that the 
 
 in error, E. B. & E. 119, upon the ground offender shall be imprisoned for a year and a 
 
 that the contract was confined to the pay- day, and shall not plead again if he be a 
 
 raent of a debt already due for costs subject pleader. Dy. 362. 1 Hawk. P. C. c. 83, 
 
 to taxation, and therefore the attorney got s. 33, et serj. Bac. Abr. tit. Maintenance, in 
 
 nothing but a security for a just debt. See the margin, 
 also Cook v. Field, 15 Q. B. 460, when an (d) 4 Black. Com. 135. 
 
 agreement to sell the possibility and expect- (c) Per Tindal, C. J., Stanley v. Jones, 
 
 7 Bine. 377. 5 M. & P. 193.
 
 chap. xxi.J Of Maintenance and Champerty. 483 
 
 actions for a part of the land ; and that though a grant of rent out of 
 other lands is not within the statute, yet the statute applies to a grant 
 of rent out of the lands in question ; hut that a grant of part of a thing 
 in suit, made in consideration of a precedent debt, is not within its 
 meaning. (/) The maintenance of a tenant or defendant is as much 
 within the meaning of the statute as the maintenance of a demand- 
 ant or plaintiff. And it has been holden not to be material whether 
 he who brings a writ of champerty did in truth suffer any dam- 
 age by it, or whether the plea wherein it is alleged be determined 
 or not. (//) 
 
 The statute of Westminster 2 (13 Edw. 1), c. 49, enacts, that 'the 
 chancellor, treasurer, justices, nor any of the King's council, no clerk 
 of the chancery, nor of the exchecpaer, nor of any justice or other 
 officer, nor any of the King's house, clerk ne lay, shall not receive any 
 church, nor advowson of a church, land, nor tenement, in fee, by gift, 
 nor by purchase, nor to farm, nor by champerty, nor otherwise, so long- 
 as the thing is in plea before us, or before any of our officers ; nor shall 
 take no reward thereof. And he that doth contrary to this Act, either 
 himself or by another, or make any bargain, shall be punished at the 
 King's pleasure, as well he that purchaseth as he that doth sell' This 
 statute extends only to the officers therein named, and not to any other 
 person, (h) But it so strictly restrains all such officers from purchas- 
 ing any land, pending a plea, that they cannot be excused by a 
 consideration of kindred or affinity, and they are within the meaning 
 of the statute by barely making such a purchase, whether they main- 
 tain the party in his suit or not ; whereas such a purchase for good 
 consideration made by any other person, of any terre-tenant, is no 
 offence, unless it appear that he did it to maintain the party, (i) 
 
 The 28 Edw. 1, c. 11, reciting that the King had theretofore ordained 
 by statute that none of his ministers should take no plea for mainte- 
 nance, by which statute other officers were not bounded, enacts, that 
 ' the King will that no officer, nor any other (for to have part of the 
 thing in plea) shall not take upon him the business that is in suit ; 
 nor none upon any such covenant shall give up his right to another ; 
 and if any do, and he be attainted thereof, the taker shall forfeit unto 
 the King so much of his lands and goods as doth amount to the value 
 of the part that he hath purchased for such maintenance. And for 
 this atteindre, whosoever will shall be received to sue for the King 
 before the justices before whom the plea hangeth, and the judgment 
 shall be given by them. But it may not be understood hereby, that 
 any person shall be prohibit to have counsel of pleaders, or of learned 
 men in the law for his fee, or of his parents or next friends.' Upon 
 this statute it seems to be agreed that champerty in any action nt law- 
 is within it ; and a purchase of land, pending a suit in equity concern- 
 ing it, has also been holden to be within the statute ; also a lease for 
 life or years, or a voluntary gift of land, pending a plea, is as much 
 within the statute as a purchase for money. But neither a conveyance 
 executed, pending a plea, in pursuance of a precedent bargain, nor any 
 surrender by a lessee to his lessor, nor any conveyance or promise 
 
 (/) See the authorities collected in 1 (q) Id. ibid. 
 
 Hawk. P. C. c. S4, s. 3. ct seq. Bac. Abr. (h ) 2 Inst. 4S4, 485. 
 
 tit. Champerty. \i) ]. Hawk. P. C. c. S4, s. 12.
 
 484 Of Maintenance and Champerty. [book ii, 
 
 thereof made by a father to his son, or by any ancestor to his heir- 
 apparent, nor a gift of land in suit, after the end of it, to a counsellor, 
 for his fee or wages, without any kind of precedent bargain relating to 
 such gift, are within the meaning of the statute, (j) A bargain by a 
 man, who has evidence in his own possession respecting a matter in 
 dispute between third persons, and who at the time professes to have 
 the means of procuring more evidence, to purchase from one of the 
 contending parties, as the price of the evidence which he so possesses 
 or can procure, an eighth part or share of the sum of money, which 
 shall be recovered by means of the production of that evidence, is an 
 illegal agreement ; and if there be any difference between such a con- 
 tract, and direct champerty, it is strongly against the legality of such 
 contract ; as besides the ordinary objection, that a stranger to the 
 controversy has acquired an interest to carry on the litigation to the 
 utmost extent, by every influence and means in his power, the bargain 
 to furnish and to procure evidence for the consideration of a money 
 payment in proportion to the effect produced by such evidence, has a 
 direct tendency to pervert the course of justice, (k) So where a bill 
 was filed for the purpose, amongst other things, of declaring an agree- 
 ment void, which had been made by a seaman for the sale of his chance 
 of prize money to his prize agents, who were to carry on the suit, Sir 
 W. Grant, M. E., expressed an opinion that the agreement was void, 
 as amounting to champerty. (/) 
 
 Where to a declaration upon an agreement the defendant pleaded 
 that one Townley died possessed of personal property, intestate and 
 without any known relation, and that administration had been granted 
 to the Solicitor to the Treasury for the use of the Queen, and that the 
 defendant was ignorant of his being related to Townley, or in any way 
 entitled to the property, and that the plaintiff and one Eosaz represented 
 to the defendant that they would supply and give such information 
 and evidence, in case it should be necessary that proceedings should be 
 taken by the defendant at law or in equity for the recovery of the 
 property, that, by means of such information and evidence, the defend- 
 ant should and might recover the property, provided the defendant 
 would enter into an agreement with the plaintiff and Eosaz to pay 
 each of them one-fifth of the property so recovered ; and that it was 
 thereupon unlawfully agreed between the parties that the plaintiff and 
 Eosaz should give and supply such information and evidence in case of 
 proceedings being taken at law or in equity for recovery of the prop- 
 erty, that, by means of such information and evidence, the defendant 
 should successfully recover the property ; and that if by means of such 
 information and evidence the defendant should actually recover the 
 property, he would pay each of them one-fifth of the amount ; and that 
 for the purpose of carrying this illegal agreement into effect the parties 
 entered into the agreement set out in the declaration, and that it was 
 under the illegal agreement that the property was actually recovered ;, 
 
 (J) Bac Abr. tit. Champerty. 1 Hawk. (k) Stanleys. Jones, 7 Bing. 869. 5 M. 
 
 P. i.e. 84, s. 14, etseq. But with respect & P. 193. Potts v. Sparrow, 6 C. & P. 
 to the counsellor it is said that it seems 749. 
 
 dangerous for him to meddle with any such (I) Stevens v. Bagwell, 15 Ves. 139. 
 
 gift, since it cannot but carry with it a 
 strong presumption of champerty. 2 Inst. 
 564.
 
 chap, xxi.] Of Maintenance and Champerty. 485 
 
 it was held that this was maintenance in its worst aspect. The plain- 
 tiff and Kosaz, entire strangers to the property, which they said the 
 defendant had a title to, but which was in the possession of another 
 claiming title to it, agreed with the defendant that legal proceedings 
 should be instituted in his name for the recovery of it, and that 
 they would supply him, not with any specified or definite documents 
 or information, but with evidence that should be sufficient to enable 
 him successfully to recover the property ; each of them was to have 
 one-fifth of the property when so recovered ; and unless the evidence 
 with which they supplied him was sufficient for this purpose, they 
 were to have nothing. They were not to employ the attorney or to 
 advance money to carry on the litigation ; but they were to supply 
 that upon which the event of the suit must depend, evidence ; and 
 they were to supply it of such a nature and in such quantity as to 
 secure success. The plaintiff purchased an interest in the property in 
 dispute, bargained for litigation to recover it, and undertook to main- 
 tain the defendant in the suit in a manner of all others the most 
 likely to lead to perjury and to a perversion of justice. Upon principle 
 such an agreement is clearly illegal, and Stanley v. Jones (m) is an 
 express authority to that effect. (?i) 
 
 3. Another species of maintenance appears to be the offence of buy- 
 ing or selling a pretended title ; of which it is said in the books that it 
 seems to be a high offence at common law, as plainly tending to 
 oppression, for a man to buy or sell at an under rate a doubtful title 
 to lands known to be disputed, to the intent that the buyer may carry 
 on the suit, which the seller does not think it worth his while to do. 
 And it seems not to be material whether the title be good or bad ; or 
 whether the seller were in possession or not, unless the possession 
 were lawful and uncontested, (p) Offences of this kind are also 
 restrained by several statutes. By the 13 Edw. 1, c. 49, no person of 
 the King's house shall buy any title whilst the thing is in dispute, 
 on pain of both the buyer and seller being punished at the King's 
 pleasure. See also 32 Hen. 8, c. 9. (p) 
 
 By the common law all unlawful maintainers are not only liable 
 to render damages in an action at the suit of the party grieved, but 
 may also be indicted and fined, and imprisoned, &c. ; and it seems that 
 a court of record may commit a man for an act of maintenance in the 
 face of the Court, (q) 
 
 The 1 Eich. 2, c. 4, enacts, that no person whatsoever shall take or 
 sustain any quarrel by maintenance, in the country or elsewhere, on 
 grievous pain ; that is to say, the King's counsellors and great officers, 
 on a pain that shall be ordained by the King himself, by the advice of 
 the lords of this realm ; and other officers of the King, on pain to lose 
 their offices and to be imprisoned and ransomed, &c. ; and all other 
 persons, on pain of imprisonment and ransom, (r) 
 
 (m) Supra. (p) For the construction of this statute, 
 
 (n) Sprye v. Porter, 7 E. & B. 58. see 1 Hawk. P. C. c. 86, s. 7, et seq. 
 
 (o) I Bac. Abr., Maintenance (E). 1 Hawk. (q) 2 Roll. Abr. 114. 2 Inst. 20S. Hetl. 
 
 P. C. c. 86, s. 1. Moore, 751. Hob. 115. 79. 1 Hawk. P. C. c. 83, s. 38. Bac. Abr. 
 
 Plowd. 80. tit. Maintenance (C). 
 
 (r) See 1 Hawk. P. C. c. 80, s. 43, et seq.
 
 CHAPTER THE TWENTY-SECOND. 
 
 OF EMBRACERY AND DISSUADING- A WITNESS FROM GIVING 
 
 EVIDENCE. 
 
 Embracery is another species of maintenance, and consists in such 
 practices as tend to affect the administration of justice by improperly 
 working upon the minds of jurors. It seems clear that any attempt 
 whatsoever to corrupt or influence or instruct a jury in the cause 
 beforehand, or in any way to incline them to be more favourable to 
 the one side than to the other, by money, promises, letters, threats, or 
 persuasions, except only by the strength of the evidence and the argu- 
 ments of the counsel in open Court, at the trial of the cause, is a 
 proper act of embracery, whether the jurors on whom such attempt 
 is made give any verdict or not, or whether the verdict given be true 
 or false, (a) And it has been adjudged that the bare giving of money 
 to another, to be distributed among jurors, is an offence of the nature 
 of embracery, whether any of it be afterwards actually so distributed 
 or not. It is also clear that it is as criminal in a juror as in any other 
 person to endeavour to prevail with his companions to give a verdict 
 for one side by any practices whatsoever ; except only by arguments 
 from the evidence which may have been produced, and exhortations 
 from the general obligations of conscience to give a true verdict. And 
 there can be no doubt but that all fraudulent contrivances whatsoever 
 to secure a verdict are high offences of this nature ; as where persons 
 by indirect means procure themselves or others to be sworn on a tales 
 in order to serve one side, (b) 
 
 The law will not suffer a mere stranger so much as to labour a 
 juror to appear, and act according to his conscience : but it seems 
 clear that a person who may justify any other act of maintenance (c) 
 may safely labour a juror to appear and give a verdict according to 
 his conscience ; but that no other person can justify intermeddling so 
 far. And no one else whatsoever can justify the labouring a juror not 
 to appear, (d) 
 
 Offences of this kind subject the offender to be indicted and pun- 
 ished by fine and imprisonment in the same manner as all other kinds 
 of unlawful maintenance do by the common law. (e) They are also 
 restrained by statutes ; the 5 Edw. 3, c. 10, enacting that any juror 
 taking of the one party or the other, and being duly attainted, shall 
 not be put in any assizes, juries, or inquests, and shall be commanded 
 to prison, and further ransomed at the King's will ; and the 34 Edw. 
 
 (a) 1 Hawk. P. C. c. 86, s. 1, 5, 4 Black, a juror after the verdict, see 1 Hawk. P. 
 Com. 140. C. c. 85, s. 3. 
 
 (6) 1 Hawk. P. C. c. 85, s. 4. R. v. (c) Ante, 478, et seq. 
 
 Opie, 1 Saund. 301. As to giving money to (d) 1 Hawk. P. C. c. 85, s. 6. 
 
 (e) Id. s. 7. 4 Black. Com. 140.
 
 chap, xxii.] Of Embracery and Dissuading Witness. 487 
 
 3, c. 8, enacting, that a juror attainted of such offence shall be impris- 
 oned for a year. The 32 Hen. 8, c. 9, enacts that no person shall 
 embrace any freeholders or jurors upon pain of forfeiting ten pounds, 
 half to the King, and half to him that shall sue within a year. (/) 
 
 The 6 Geo. 4, c. 50, s. 62, repeals so much of the 5 Edw. 3, c. 10, 
 '.as relates to the punishment of a corrupt juror,' and so much of the 
 34 Edw. 3, c. 8, 'as directs the proceedings against jurors taking a 
 reward to give their verdict; 'and enacts and declares, by sec. 61, 
 that ' notwithstanding anything herein contained, every person who 
 shall be guilty of the offence of embracery, and every juror who shall 
 wilfully or corruptly consent thereto, shall and may be respectively 
 proceeded against by indictment or information, and be punished by 
 tine and imprisonment, in like manner as every such person might 
 have been before the passing of this Act.' 
 
 All who endeavour to stifle the truth, and prevent the due execution 
 of justice, are highly punishable ; and therefore the dissuading or en- 
 deavouring to dissuade a witness from giving evidence against a person 
 indicted is an offence at common law, though the persuasion should 
 not succeed, (g) 2 
 
 By the Witnesses Protection Act, 1892 (55 & 56 Vic. c. 64),— 
 Sec. 1. 'In this Act the word "inquiry" shall mean any inquiry held 
 under the authority of any Royal Commission or by any committee of 
 either House of Parliament, or pursuant to any statutory authority, 
 whether the evidence at such inquiry is or is not given on oath, but 
 shall not include any inquiry by any court of justice.' 
 
 By sec. 2, 'Every person who commits any of the following acts, 
 that is to say, who threatens, or in any way punishes, damnifies, or 
 injures, or attempts to punish, damnify, or injure any person for having 
 given evidence upon any inquiry, or on account of the evidence which 
 he has given upon any such inquiry, shall, unless such evidence was 
 given in bad faith, be guilty of a misdemeanor, and be liable upon 
 conviction thereof to a maximum penalty of one hundred pounds, or 
 to a maximum imprisonment of three months.' 
 
 By sec. 3, 'A prosecution for any offence under this Act may be 
 heard and determined by a court of summary jurisdiction under the 
 Summary Jurisdiction Acts, provided that should either the complain- 
 ant or the party charged object to the case being dealt with summa- 
 rily, the Court shall send such case for trial to the quarter sessions or 
 assizes, or in cases arising within the metropolitan area to the Central 
 Criminal Court.' 
 
 By sec. 4 ' It shall be lawful for any Court before which any 
 person may be convicted of any offence under this Act, if it thinks 
 fit, in addition to sentence or punishment by way of fine or imprison- 
 ment, to condemn such person to pay the whole or any part of the 
 
 (/) Upon the construction of these stat- giving evidence against a person indicted, 2 
 
 utes, see 1 Hawk. P. C. c. 85, s. 11, et scq. Chit. Crim. L. 235 ; and an indictment for 
 
 (g) 1 Hawk. P. C. c. 21, s. 15. R. v. a conspiracy to prevent a witness from giving 
 
 Lawley, 2 Str. 904. As to mere attempts evidence, R. v. Steventon, 2 East, R. 362. 
 
 to commit crimes, see ante, p. 195. And see And see R. v. Edwards, ante, p. 293. 
 an indictment for dissuading a witness from 
 
 American Note. 
 1 See S. v. Keyes, 8 Verm. 57 ; S. v. Carpenter, 20 Verm. 9.
 
 488 Of Embracery and Dissuading Witness. [book ii. 
 
 costs and expenses incurred in and about the prosecution and convic- 
 tion for the offence of which he shall be convicted, and, upon the 
 application of the complainant, and immediately after such conviction, 
 to award to complainant any sum of money which it may think 
 reasonable, having regard to all the circumstances of the case, by way 
 of satisfaction or compensation for any loss of situation, wages, 
 status, or other damnification or injury suffered by the complainant 
 through or by means of the offence of which such person shall be so 
 convicted, provided that where the case is tried before a jury, such 
 jury shall determine what amount, if any, is to be paid by way of 
 satisfaction or compensation.' 
 
 By sec. 5, ' The amount awarded for such satisfaction or compensa- 
 tion, together with such costs, to be taxed by the proper officer of the 
 court, shall be deemed a judgment debt due to the person entitled to 
 receive the same from the person so convicted, and be recoverable 
 accordingly.'
 
 CHAPTER THE TWENTY-THIRD. 
 
 OF BARRATRY, AND OF SUING IN THE NAME OF A FICTITIOUS 
 
 PLAINTIFF. 
 
 A barrator is defined to be a common mover, exciter, or maintainer 
 of suits or quarrels, in courts of record, or other courts, as the county 
 court, and the like ; or in the country, by taking and keeping posses- 
 sion of lands in controversy, by all kinds of disturbance of the peace, 
 or by spreading false rumours and calumnies whereby discord and 
 disquiet may grow among neighbours, (a) But one act of this 
 description will not make anyone a barrator, as it is necessary in 
 an indictment for this offence to charge the defendant with being 
 a common barrator, which is a term of art appropriated by law to this 
 crime, (b) It has been holden, that a man shall not be adjudged a 
 barrator in respect of any number of false actions brought by him in 
 his own right ; (c) but this is doubted, in case such actions be merely 
 groundless and vexatious, without any manner of colour, and brought 
 only with a design to oppress the defendants, (d) 1 
 
 An attorney cannot be deemed a barrator in respect of his maintain- 
 ing another in a groundless action, to the commencing whereof he 
 was in no way privy, (e) And it seems to have been holden that a 
 feme covert cannot be indicted as a common barrator ;(/) but this 
 opinion is considered as questionable, (g) 
 
 In an indictment for this offence it seems to be unnecessary to allege 
 it to have been committed at any certain place ; because, from the 
 nature of the crime, consisting in the repetition of several acts, it must 
 be intended to have happened in several places ; wherefore it is said 
 that the trial ought to be by a jury from the body of the county, (h) 
 As the indictment may be in a" general form, stating the defendant to 
 be a common barrator, without showing any particular facts, it is 
 clearly settled that the prosecutor must, before the trial, give the 
 defendant a note of the particular acts of barratry which he intends 
 
 (a) R. v. Urlvn, 2 Saund. 308, note (1). (c) Roll. Abr. 355. 
 
 1 Hawk. P. C. c."81, ss. 1, 2. Co. Litt. 368. (of) 1 Hawk. P. C. c. 81, s. 3. 
 
 8 Rep. 36. Barrator is said to be a forensic (e) 1 Hawk. P. C. c. 81, s. 4. 
 
 term taken from the Normans. The Ice- (/) Bac. Abr. tit. Baron and Feme, (G) 
 
 landic and Scandinavian barrata, the Anglo- in the notes, citing Roll. Rep. 39. 
 
 Norman buret, and the Italian baratta, are (g) 1 Hawk. P. C. c. 81, s. 6. 
 
 all words signifying a quarrel or contention. (h) Parcel's case, Cro. Eliz. 195. 1 Hawk. 
 
 See the notes to Bac. Abr. tit. Barratry (A). P. C. c. 81, s. 11. Bac. Abr. tit. Barratry 
 
 (b) 8 Co. 36 R. v. Hardwicke, 1 Sid. (B). 
 282. R. v. Hannon, 6 Mod. 311. 
 
 American Note. 
 1 See C. v. McCulloch, 15 Mass. Rep. levied separate executions oppressively, it 
 227. When a man purchased three notes and was held that though this was not barratry 
 brought three separate suits on them, and it was still an indictable offence.
 
 490 Barratry, and Suing in Name of Fictitious Plaintiff, [book ii. 
 
 to prove against him ; and that, if he omit to do so, the Court will not 
 suffer him to proceed in the trial of the indictment, (i) And the prose- 
 cutor will be confined to his note of particulars, and will not be at 
 liberty to give evidence of any other acts of barratry than those which 
 are therein stated. (J) 
 
 It has been adjudged that justices of peace, as such, have, by virtue 
 of the commission of the peace, authority to inquire and hear this 
 offence, without any special commission of oyer and terminer, (k) 
 
 The punishment for this offence in common persons is by fine and 
 imprisonment, and binding them to their good behaviour ; and in per- 
 sons of any profession relating to the law, a further punishment by 
 being disabled to practise for the future. (I) 
 
 In this place may be mentioned another offence of equal malignity 
 and audaciousness ; that of suing another in the name of a fictitious 
 plaintiff ; either one not in being at all, or one who is ignorant of the 
 suit. This offence, if committed in any of the King's superior Courts, 
 is left, as a high contempt, to be punished at their discretion ; but in 
 Courts of a lower degree, where the crime is equally pernicious, but 
 the authority of the judges not equally extensive, it is directed by the 
 8 Eliz. c. 2, s. 4, to be punished by six months' imprisonment, and 
 treble damages to the party injured, (in) 
 
 (i) R. v. Grove, 5 Mod. 18. J' Anson (Z) 34 Edw. 3, c. 1. 1 Hawk. P. C. c. 81, 
 
 v. Stuart, 1 T. R. 748, per Buller, J. And s. 14. Bac. Abr. tit. Barratry (C). 4 Blac. 
 
 per Heath, J., in R. v. Wylie, 1 New R. 95. Com. 134. As to punishing in a summary 
 
 (./) Goddard v. Smith, 6 Mod. 262. manner, a person convicted of common 
 
 (k) Barnes v. Constantine, Yelv. 46. Cro. Barratry who shall practise as a solicitor 
 
 Jac. 32, S. C. recognised in Busby v. Watson, in any suit or action in England, see 12 
 
 2 Black'. R. 1050. See R. v. Urlyn, 2 Saund. G. 1, c. 29, s. 4 ; 21 G. 2, c. 3 ; 30 & 31 
 
 308, note (1). In Hawk. P. C. c. 81, s. 8, Vict., c. 59 ; Stat. Law Rev. Act, 1867. 
 there is a qucerc to this point, as having been (//<) 4 Black. Com. 134. 
 
 ruled differently in Rolle's Reports.
 
 CHAPTER THE TWENTY-FOURTH. 
 
 OF CONSPIRACY, (a) 1 
 
 The conspiring to obstruct, prevent, or defeat the course of public 
 justice ; (b) to injure the public health, as by selling unwholesome 
 provisions ; (c) or to effect any public mischief (cV) as by raising 
 the price of the public funds by illegal means ; (e) are offences 
 punishable by indictment. And it appears that an indictment lies, 
 not only wherever a conspiracy is entered into for a corrupt or ille- 
 gal purpose, but also where the conspiracy is to effect a legal pur- 
 pose by the use of unlawful means ; and this, although such 
 purpose be not effected. (/) And it is laid down in a book of 
 great authority that all confederacies whatsoever wrongfully to pre- 
 judice a third person are highly criminal at common law ; as where 
 divers persons confederate together by indirect means to impoverish 
 a third person, or falsely and maliciously to charge a man with being 
 the reputed father of a bastard child, or to maintain one another in any 
 matter, whether it be true or false, (g) The conspiracy or unlawful 
 agreement, though nothing be done in prosecution of it, is the gist of 
 the offence. (7i) The nature of conspiracy, therefore, requires that 1/ 
 more than one person should be concerned in it. In many cases an ' 
 agreement to do a certain thing has been considered as the subject of 
 an indictment for a conspiracy, though the same act, if done sepa- 
 
 («) The Acts relating to trade disputes a conspiracy unless it be put in execution, 9 
 
 will he found at the end of this chapter. Co. 57. W. Jones, 93. Savile v. Roberts, 
 
 (b) R. v. Mavvbey, 6 T. R. 619, et seq. 1 Lord Raym. 378. And see 8 Mod. 320, 
 4 Black. Com. 136. 1 Hawk. P. C. c. 72, that conspiring to do a lawful act, if for an 
 s. 2. unlawful end, is indictable. See post, p. 792, 
 
 (c) R. v. Mackarty, 2 Lord Raym. 1179. note (b). 
 
 2 East, P. C. c. 18, s. 5, p. 823. 4 Black. (g) 1 Hawk. P. C. c. 72, s. 2. It is not 
 
 Com. 162. And see the remarks upon R. v. necessary in an indictment for conspiring 
 
 Mackarty in 6 East, 133, 141. to charge a man with being the father of a 
 
 (cl) See R. v. Boulton, 12 Cox, C. C. 87. bastard child, to state that, the charge was 
 
 (e) R. v. De Berenger, 3 M. & S. 67. false, R. v. Best, post, p. 503. 
 
 (/) R. v. Journeymen Tailors of Cam- (h) R. v. Best, 2 Lord Ravm. 1167. R 
 
 bridge, 8 Mod. 11. R. v. Best, 2 Lord Raym. v. Spragg, 2 Burr. 993. R~. v. Rispal, 3 
 
 1167. 6 Mod. 185. 1 East, P. C. c. 11, Burr. 1320. Per Tindal, C. J., O'Connell v. 
 
 s. 11, ]>. 462. But an action will not lie for R., 11 CI. & F. 155, post. 
 
 American Note. 
 
 1 See U. S. v. Cole, 5 McLean, 513 ; ance in principle between the English and 
 
 Hasen v. C, 11 Harris, 366 ; C. v. Judd, 2 American law of Conspiracy ; but it may he 
 
 Mass. 329 ; S. v. Rickey, 4 Halst. 293 ; S. that a particular act may be unlawful or in- 
 
 v. Rowley, 12 Conn. 101 ; Smith v. P., 25 jurious in one country which may not be so 
 
 111. 17 ; P. v. Clark, 10 Mich. 310 ; Lowery in the other, and hence a confederacy to do 
 
 v. S., 30 Texas, 402 ; S. v. Cawood, 2 Stew. such an act in one country may be a Con- 
 
 360 ; Torrey v. Field, 10 Verm. 353 ; Rhoads spiracy, while in the other it would not be 
 
 v. C, 3 Harris, 272 ; S. v. Potter. 28 Iowa, so. See Bishop ii. s. 176 et seq. 
 554. There does not appear to be any vari-
 
 492 Of Conspiracy. [book ii. 
 
 rately by each individual without any agreement amongst themselves, 
 would not have been illegal. {%) It has been said that perhaps few 
 things are left so doubtful in the criminal law, as the point at which 
 a combination of several persons, in a common object, becomes 
 illegal, {j) It appears, however, to have been holden that if such 
 persons illegally concur in doing an act they may be guilty of con- 
 spiracy, though they were not previously acquainted with each 
 other, (k) It has been laid down that conspiracy is ' a crime which 
 consists either in a combination and agreement by persons to do some 
 illegal act, or a combination and agreement to effect a legal purpose by 
 illegal means.' (/) And also that ' the crime of conspiracy is complete 
 if two, or more than two, should agree to do an illegal thing ; that is, 
 to effect something in itself unlawful, or to effect, by unlawful means, 
 something which in itself may be indifferent, or even lawful, (m) It 
 is the illegal combination itself that is mischievous, and therefore 
 where a woman, who was not pregnant but believed herself to be so, 
 was convicted of conspiring with other persons to administer drugs to 
 herself with intent to procure abortion, it was held that the convic- 
 tion was right, although the actual administering to herself of such 
 drugs would not have been criminal on her part under 24 & 25 Vic. 
 c. 100, s. 58. {n) The question as to what amounts to an illegal con- 
 spiracy has been very fully discussed in a recent case, (o) in which an 
 associated body of traders endeavoured to get the whole of a limited 
 trade into their own hands by offering exceptional and very favourable 
 terms to customers who w^ould deal exclusively with them, — so fa- 
 vourable that but for the object of keeping the trade to themselves they 
 
 (i) By Grose, J., in R. v. Mawbey, 6 T. Chief Justice, upon this dictum being cited, 
 
 R. 636. 1 And see R. v. The Journeymen said, 'I do not think the antithesis very 
 
 Tailorsof Cambridge, 8 Mod. 11. R. i;. Row- correct; 'and in R. v. King, 7 Q. B. 782, 
 
 lands, 17 Q. B. 671, ;ms/. R. v. Parnell, 14 the same learned Chief Justice said, ' The 
 
 Cox, C. C. 508. See 38 & 39 Vict. c. 86, words "at least" should accompany that 
 
 s. 3, post, as to when an agreement or com- statement.' In R. v. Jones, 4 B. & Ad. 
 
 bination by several in furtherance of a trade 345, 1 X. & M. 78, however, several learned 
 
 dispute is not indictable. 2 judges gave a similar definition of the crime 
 
 (;) 3 <'hit. Crim. L. 1139. of conspiracy. And see ante, p. 491, note 
 
 (/.-) By Lord Mansfield in the case of the ( f). C. S.*G. See R v. Bunse, 12 Cox, 
 
 prisoners in the King's Bench, Hil. T. 26 C. C. 316. 
 
 Geo. 3. 1 Hawk. P. C. c. 72, s. 2, in the (m) Per Tindal, C. J., delivering the 
 
 notes. See post, p. 534. opinion of all the judges in O'Connell v. 
 
 (!) Per Alderson, B., R. v. Vincent, 9 C. R., 11 CI. & F. 155, post, p. 526. 
 & P. 91, and in R. v. Seward, 1 A. & E. 713, (n) R. v. Whitchurch, 24 Q. B. D. 420. 
 
 Lord Denman, C. J., said, 'An indictment {<>) Mogul Steamship Company v. Mc- 
 
 for conspiracy ought to show either that it Gregor, Gow & Co. (1892) A. C. 25, 23 Q. 
 
 was for an unlawful purpose, or to effect a B. D. 598 ; 21 Q. B. D. 544. See also 
 
 lawful purpose by unlawful means ;' but in Temperton v. Russell (1893), 1 Q. B. 715. 
 R. v. Peck, 9 A. & E. 686, the learned 
 
 American Notes. 
 
 1 It has been held in America that where will be found to include all common-law 
 several men conspire together to obtain conspiracies are declared to be indictable, 
 money from a bank by severally drawing and it is declared that no conspiracies other 
 cheques, knowing they had then no money than those should be considered crimes. In 
 at the bank, there was no criminal conspir- New Jersey the same law is declared, but 
 acy. S. v. Rickey, 4 Halst. 293. without the restriction. In Maine, Penn- 
 
 2 With respect to the law in America as sylvania, Georgia, Indiana, Iowa, and some 
 to trade disputes, reference may be made to others, there are statutes more or less similar 
 Bishop ii. ss. 230 et seq. In New York to the above, see Bishop ii. ss. 236-238. 
 Revised Statutes certain conspiracies which
 
 chap, xxiv.] Of Conspiracy. 493 
 
 would not have given such terms but with the intention not of injur- 
 ing their rivals, but of preventing rival traders from competing with 
 them. It was held that this would not amount to an indictable con- 
 spiracy. In the course of his judgment Bowen, L. J., said (p) : ' It is 
 urged on behalf of the plaintiffs that even if the acts complained of 
 would not be wrongful had they been committed by a single individ- 
 ual, they become actionable when they are the result of concerted 
 action among several. In other words, the plaintiffs, it is contended, 
 have been injured by an illegal conspiracy. Of the general proposi- 
 tion that certain kinds of conduct not criminal in any one individual 
 may become criminal if done by combination among several, there can 
 be no doubt. The distinction is based on sound reason, for a combi- 
 nation may make oppressive or dangerous that which if it proceeded 
 only from a single person would be otherwise, and the very fact of 
 the combination may show that the object is simply to do harm and 
 not to exercise one's own just rights. In the application of this 
 undoubted principle it is necessary to be very careful not to press the 
 doctrine of illegal conspiracy beyond that which is necessary for the 
 protection of individuals or of the public. . . . But what is the definition 
 of an illegal combination ? It is an agreement by one or more to do an 
 unlawful act, or to do a lawful act by unlawful means; O'Connell v. 
 R., (q) R. v. Pamell, (r) and the question to be solved is whether there 
 has been any such agreement here. Have the defendants combined 
 to do an unlawful act ? Have they combined to do a lawful act by 
 unlawful means ? . . . The truth is that the combination of capital for 
 purposes of trade and competition is a very different thing from such 
 a combination of several persons against one with a view to harm him 
 as falls under the head of an indictable conspiracy. There is no just 
 cause or excuse in the latter class of cases. There is such a just cause 
 or excuse in the former. There are cases in which the very fact of a 
 combination is evidence of a design to do that which is hurtful with- 
 out just cause, — is evidence (to use a technical expression) of malice. 
 But it is perfectly legitimate, as it seems to me, to combine capital for 
 all the mere purposes of trade for which capital may, apart from com- 
 bination, be legitimately used in trade. . . . Would it be an indict- 
 able conspiracy to agree to drink up all the water from a common 
 spring in a time of drought ; to buy up by preconcerted action all the 
 provisions in a market or district in times of scarcity (see R. v. Wad- 
 dington, 1 East, 143) ; to combine to purchase all the shares of a 
 company against a coming settling day, or to agree to give away arti- 
 cles of trade gratis in order to withdraw custom from a trade ? May 
 two itinerant match-vendors combine to sell matches below their 
 value in order by competition to drive a third match-vendor from the 
 street ? ... The question must be decided by the application of the 
 test I have indicated. Assume that what is done is intentional and 
 that it is calculated to do harm to others. Then comes the question, 
 Was it done without just cause or excuse ? If it was bond fide done 
 in the use of a man's own property, in the exercise of a man's own 
 trade, such legal justification would, I think, exist not the less 
 because what was done might seem to others to be selfish or unrea- 
 
 (p) 23 Q. B. D. at p. 616. (r) H.Cox, C. C. 508. 
 
 (q) U CI. & Fin. 155.
 
 494 Of Conspiracy. [book ii. 
 
 sonable (see R. v. Rowlands, 17 Q. B. 671). But such legal justifi- 
 cation would not exist when the act was merely done with the 
 intention of causing temporal harm without reference to one's own 
 lawful gain or the lawful enjoyment of one's own rights. The good 
 sense of the tribunal which had to decide would have to analyse the 
 circumstances, and to discover on which side of the line each case fell. 
 But if the real object were to enjoy what was one's own, or to acquire 
 for one's self some advantage in one's property or trade, and what was 
 done was done honestly, peaceably, and without any of the illegal 
 acts before referred to, it could not in my opinion properly be said that 
 it was done without just cause or excuse. One may with advantage 
 borrow for the benefit of traders what was said by Erie, J., in R. v. 
 Rowlands, 17 Q. B. 671, at p. 687 (n), of workmen and of masters. 
 " The intention of the law is at present to allow either of them to 
 follow the dictates of their own will with respect to their own actions 
 and their own property, and either I believe has a right to study to 
 promote his own advantage or to combine with others to promote 
 their mutual advantage." ' 
 
 This judgment was approved and adopted in the House of Lords. 
 
 Amongst the most flagrant instances of conspiracies against the 
 public justice of the kingdom, may be mentioned a case in which 
 the defendants were charged with a conspiracy, in causing a man 
 to be executed for a robbery, which they knew he was innocent of, 
 with intent to get into their possession the reward offered by Act 
 of Parliament, (s) And it would have been equally a conspiracy, 
 though the defendants had failed in their infamous design, and the 
 man had been acquitted. Indeed one of the more ancient descrip- 
 tions of conspiracy is 'a consultation and agreement between two 
 or more to appeal, or indict an innocent person falsely and mali- 
 ciously of felony, whom accordingly they cause to be indicted or 
 appealed ; and afterwards the party is lawfully acquitted by the 
 verdict of twelve men.' (t) But of this description it is observed, 
 that the lawful acquittal of the party grieved does not appear to 
 be required in order to make the offenders guilty of conspiracy, (u) 
 The description of conspirators in the old statute, 33 Edw. 1, st. 2 
 (sometimes cited as 21 Edw. 1), is 'that conspirators be they that 
 do confecler or bind themselves by oath, covenant, or other alliance, 
 that every of them shall aid and bear the other falsely and mali- 
 ciously to indict, or cause to indict, or falsely to move and maintain 
 pleas ; and also such as cause children within age to appeal men of 
 felony, whereby they are imprisoned and sore grieved ; and such as 
 retain men in the country with liveries of fees for to maintain their 
 malicious enterprizes ; and this extendeth as well to the takers as 
 
 (s) K. v. Macdaniel, 1 Leach, 45. And Davy said, 'There is a distinction between 
 
 see Fost. 130. It should seem that the only a writ of conspiracy and an indictment for 
 
 objection to this being treated as a conspir- conspiracy. In an action the damage is the 
 
 acy was that which might arise from its being gist of the action ; and therefore the writ and 
 
 considered as a crime of the highest degree declaration must charge "that he was in- 
 
 (i. e., murder), in which the misdemeanor dieted and sustained damage ; " but that is 
 
 would be merged. not necessary in an indictment, which is for 
 
 (t) 3 Inst. 143. 4 Black. Com. 136. an offence against the public. And this dis- 
 
 (u) 1 Hawk. P. C. c. 72, s. 2. In the tinction explains Lord Coke's meaning in 3 
 
 case of R. v. Spragg, 2 Burr. 998, Serjt. Inst. 143.'
 
 chap, xxiv.] Of Conspiracy. 495 
 
 to the givers, and to stewards and bailiffs of great lords, who by their 
 seigniority, office, or power, undertake to bear or maintain quarrels, 
 pleas, or debates, that concern other parties than such as touch the 
 estate of their lords or themselves.' From which definition of conspi- 
 rators it is said that it seems clearly to follow that not only those who 
 actually cause an innocent man to be indicted, and also to be tried upon 
 the indictment, whereupon he is lawfully acquitted, are properly con- 
 spirators, but that those also are guilty of this offence, who barely 
 conspire to indict a man falsely and maliciously, whether they do any 
 act in prosecution of such conspiracy or not ; for the words of the 
 statute seem expressly to include all such confederacies under the 
 notion of conspiracy, whether there be any prosecution or not. (v) But 
 it is also said that since it does not appear to have been solemnly 
 resolved that persons offending by a false and malicious accusation 
 against another are indictable upon this statute, it seems to be more 
 safe and advisable to ground an indictment for such offence upon the 
 common law than upon the statute, (to) 
 
 A conspiracy of this kind appears, therefore, to consist in the unlaw- 
 ful agreement to injure a person by a false charge ; though it be in no 
 way prosecuted. And whether the conspiracy be to charge a tempo- 
 ral or an ecclesiastical offence on an innocent person, it is the same 
 thing, (x) 
 
 A conspiracy to indict a person for the purpose of extorting money 
 from him is a misdemeanor, whether the charge be or be not false, (tj) 
 A conspiracy to enforce by legal process the payment of sums of money 
 which the persons conspiring knew not to be due is indictable, (z) 
 
 It seems not to be any justification of a confederacy to carry on a 
 false and malicious prosecution, that the indictment or appeal which 
 was preferred, or intended to be preferred in pursuance of it, was in- 
 sufficient, or that the court wherein the prosecution was carried on or 
 designed to be carried on had no jurisdiction of the cause, or that the 
 matter of the indictment did import no manner of scandal, so that the 
 party grieved was, in truth, in no danger of losing either his life, liberty, 
 or reputation. For notwithstanding the injury intended to the party 
 against whom such a confederacy is formed may perhaps be inconsider- 
 able, yet the association to pervert the law, in order to procure it, 
 seems to be a crime of a very high nature, and justly to deserve the 
 resentment of the law. (a) Therefore, on an indictment for wickedly 
 and unlawfully conspiring to accuse another of taking hair out of a 
 bag, without alleging it to be an unlawful and felonious taking, it was 
 said by Lord Mansfield that the gist of the offence was the unlawful 
 conspiracy to do an injury to another by a false charge, and that 
 whether the conspiracy be to charge a man with criminal acts or such 
 only as may affect his reputation, it is sufficient, (b) 
 
 It is observed that it appears not only from the words of the statute, 
 
 (y) 1 Hawk. P. C. c. 72, s. 2. or false is material on the question whether 
 
 (w) Ibid. the prosecution was bond or mala fide. Ibid. 
 
 (x) R. v. Best, 2 Lord Ravin. 1167. 1 (z) R. v. Taylor, 15 Cox, C. C. 265, 26S. 
 
 Salk. 174. (a) 1 Hawk. P. C. c. 72, s. 3. 
 
 (y) R. v. Hollingberry, 4 B. & C. 329. (b) R. v. Rispal, Black. R. 368. 3 Burr. 
 
 6 D. & R. 345. S. P. R. v. Jacobs, 1 Cox, 1320. And see Pippet v. Hearn, 5 B. & 
 
 C. C. 173 ; but whether the charge be true A. 634, ante, p. 350, note (///).
 
 496 Of Conspiracy. [book ii. 
 
 but also from the plain reason of the thing, that no confederacy what- 
 soever to maintain a suit can come within the words of the 33 Edvv. 1, 
 stat. 2, unless it be both false and malicious, (c) And several persons 
 may lawfully meet together and consult to prosecute a guilty person, 
 or one against whom there is probable cause of suspicion ; but not to 
 prosecute one that is innocent, right or wrong, (d) And associations 
 to prosecute felons, and even to put the laws in force against political 
 offenders, are lawful, (e) 
 
 It has been held that a certificate by justices of the peace that an 
 indicted highway is in repair, is a legal instrument, recognised by the 
 courts of law, and admissible in evidence after conviction, when the 
 court is about to impose a fine ; and that, consequently, it is illegal to 
 conspire to pervert the course of justice by producing a false certificate 
 in evidence to influence the judgment of the court. The indictment 
 stated that a highway was indicted as being out of repair, and a plea 
 of not guilty, but that it was intended to apply to withdraw the plea 
 and plead guilty ; that two justices of the county, and two other per- 
 sons, conspired to pervert the course of justice and impose on the court 
 by producing a false certificate from the two defendants, who were 
 justices, that the road was in repair, and that they did so. There was 
 a verdict against the two justices, and a rule was obtained to arrest the 
 judgment. Upon showing cause against this rule the counsel for the 
 prosecution went at large into a discussion of the doctrine and nature 
 of conspiracies. He said : ' It follows from the very nature of the 
 offence of conspiracy that there is no charge of any specific crime, but 
 it consists wholly in the unlawful combination ; and this will appear 
 fully by adverting to the several sorts of conspiracy to be found in the 
 Books : - — 
 
 ' 1. Where the subject-matter is neither malum 'prohibitum, nor 
 malum in se, as referred to the individual ; but the criminality in law 
 arises wholly from the conspiracy. Such as an agreement to maintain 
 each other, right or wrong ; (/) or a combination amongst labourers or 
 mechanics to raise their wages, (g) So where several conspired to hiss 
 at the Birmingham Theatre, Lord Mansfield held it indictable, although 
 each might have done so separately, (h) So a combination between 
 officers in the service of the East India Company to resign their com- 
 missions was held an illegal act ; and consequently a resignation ten- 
 dered under those circumstances was held not to be a determination 
 of the service, (i) 
 
 ' 2. Where the subject-matter is not malum prohibitum, as referred 
 to the individual, though malum in se ; but the criminality in law 
 arises from the conspiracy, such as a malicious combination against a 
 trader to ruin him in his trade, (j) So the taking up dead bodies, even 
 though for the purpose of science in dissecting them, is now held an 
 
 (c) 1 Hawk. P. C. c. 72, s. 7. (h) Anon., B. R. 18 or 19 Geo. 3. 
 
 (d) R. v. Best, 1 Salk. 174. And see 1 (/) 4 Burr. 2472. 
 
 Hawk. P. C. c. 72, s. 7. (j ) 1 Stra. 144. 1 Lev. 125. R. v. 
 
 (e) R. v. Murray, 1 Chit. Burn's Just. Eccles, 1 Leach, 274, post. R. v. Rowlands, 
 817. Matth. Dig. 90. Abbott, C. J., Guild- 17 Q. B. 671, post; and see Mogul Steamship 
 hall, 1823. Co. v. McGregor, Gow & Co. (1892) A. C. 
 
 (/) 9 Co. 56. 25. 
 
 {(j) 8 Mod. 10 ; but see R. v. Rowlands, 
 17 Q. B. 671, post.
 
 chap, xxiv.] Of Conspiracy. 497 
 
 indictable offence per se ; (k) yet formerly it was not so considered, 
 but even then it was held that an indictment lay for conspiracy to do 
 so. (I) A false indictment is no crime as referred to the individual, (m) 
 but a conspiracy for that purpose subjects the offenders to the villanous 
 judgment, (n) The private slander of another by an individual is not 
 indictable ; but conspiring to charge another with slanderous matter is 
 so, (o) though no legal charge be actually preferred, (p) And in this 
 latter case it was held that the Quarter Sessions had jurisdiction over 
 conspirators. It is the same with private immorality, which is only 
 indictable when coupled with a conspiracy, (g) So two or more joining 
 to do legal acts with a corrupt intent may be indicted. (?^) And private 
 deceits, coupled with a conspiracy, are indictable on that account, (s) 
 
 ' 3. The third head of conspiracy is where the subject-matter is malum 
 prohibitum, as referred to the individual, and the criminality in law 
 is thereby aggravated if executed. Of this nature is the bare attempt 
 to subvert religion, (t) or public justice ; and the latter will apply to 
 both descriptions of counts in the indictment. Such also is the en- 
 deavour to dissuade witnesses from giving evidence, (u) or the prep- 
 aration of witnesses, (v) or the tampering with jurors, (w) Such are 
 public frauds in trade, (x) or public cheats, (y) or deceit or collusion 
 in the King's courts, or any consent thereto, (z) 
 
 ' 4. Where there is a bare conspiracy unexecuted, (a) or where the 
 conspiracy by the execution merges in a higher offence.' (b) And he 
 then argued that the offence charged against the defendants fell within 
 the principles of the above cases. 
 
 In giving his judgment in this case, Ashurst, J., said, ' The prin- 
 cipal question is whether a conspiracy to pervert the course of 
 justice by producing in evidence a false certificate be or be not a 
 crime ? It seems to me that a greater offence can hardly be stated 
 than that of obstructing or perverting the course of justice, on which 
 the lives and properties of all the subjects depend.' And Grose, J., 
 said, ' It is laid down in some of the cases that an attempt to per- 
 suade another not to give evidence in a court of justice is indictable ; 
 then it cannot be doubted but that an attempt to mislead the court 
 by misrepresentation is equally criminal. The course of justice is 
 perverted if the certificate of the justices be false. If they agree to 
 certify that a road is in repair for the purpose of perverting the 
 course of justice it is a crime and indictable; and it is not necessary 
 
 (k) R. v. Lynn, 2 T. R. 733. {t) Fitzg. 66. 
 
 (I) R. v. Young, cited in 2 T. R. 733. (u) l Hawk. P. C. c. 21, s. 15. 2 Stra. 
 
 This was an indictment for a conspiracy to 904. And see R. v. Steventon, 2 East, 
 
 prevent the burial of a corpse. And see a R. 362. 
 
 precedent for such a conspiracy, 2 Chit. (v) Hob. 271. 3 Inst. 106. 2 Show. 1. 
 
 Crim. L. 36. \ w ) \ Saund. 300. 1 Lord Raym. 148. 
 
 (m) 1 Ed. 3, stat. 2, c. 11. 2 Black. Rep. 1 Burr. 510. R. v. Jolliffe, 4 T. R. 2S5. 
 
 1328, 9. Co. Lit. 157. 
 
 (n) Ibid. (x) 1 Sess. Cas. 217. Comb. 16. 1 Sid. 
 
 (o) 1 Lev. 62. 1 Vent. 304. 409. 1 Ventr. 13. 
 
 (p) 1 Salk. 174. 1 Stra. 193. 3 Burr. (y) 5 St. Tr. 486. 1 Latch. 202. 1 Roll. 
 
 1320. Rep. 2. 2 Lord Raym. 865. 1 Barnard. 
 
 (q) 1 Salk. 382, 552. 3 Burr. 1434, 330. 
 
 1878. 2 Lord Raym. 1031. 4 St. Tr. 515. (z) 3 Edw. 1, c. 29. 2 Inst. 212, 217. 
 
 (r) R. v. Robinson, 1 Leach, 37. 8 Mod. (a) 1 Lev. 62, 125. 1 Vent. 304. 3 
 
 321. 1 Wils. 41. 3 Burr. 1439. Burr. 1320. 1 Lord Raym. 379. 1 Salk. 
 
 (s) 6 Mod. 42, 301. 2 Burr. 1127. 2 174. 1 Stra. 193. T. Raym. 417. 
 
 Stra. 866. (h) 1 Lord Raym. 711. 
 vol. i. — 32
 
 498 Of Conspiracy. [book ii. 
 
 that they should know at the time of such agreement that the road is 
 out of repair ; it is sufficient that they did not know that the fact 
 which they certified to be true was true.' And Lawrence, J., said, 
 'The question is, whether a conspiracy to do an act from which the 
 public may receive any damage be or be not indictable ? At first I 
 thought this a very doubtful case, because it struck me that this was 
 an act by which the public would not suffer, as the court of the assizes 
 were not bound to receive the certificate of the defendants, it not being 
 on oatb. But on examination it appears that the practice of receiving 
 the certificates of magistrates respecting the state of roads, has existed 
 as far as the memory of living persons extends, and the books carry it 
 still further back. I have not been able to discover how or when the 
 practice of receiving these certificates arose ; but a practice that has 
 been adopted in the courts at least as long back as the reign of Charles 
 the First, goes a great way to show what the law is upon the subject. 
 And this is not the only instance of receiving certificates in evidence ; 
 certificates of bishops with respect to marriages are received ; the 
 customs of London are certified by the recorder ; so formerly were 
 certificates received from the captain of Calais ; and in Cro. Eliz. 502, 
 this court said that they would give credit to the certificates of the 
 judges in Wales respecting the practice of their court, and that the 
 custom of the court is a law in that court.' (c) 
 
 Where one brother had executed a conveyance of land to another 
 for the avowed object of giving the latter a colourable qualification to 
 kill game, and to get rid of an information then pending against him, 
 it seems to have been considered as quite clear that they were both 
 guilty of an indictable conspiracy, (d) 
 
 A count alleged that C. Staden, J. James, and J. Broome had been 
 committed for trial for having, by cheating and false pretences, ob- 
 tained from W. Hamp 300/., and that W. Hanip had been bound by 
 recognizances to prosecute them ; and that W. Hamp, W. Watkins, and 
 W. Probert, intending to defeat the due course of law, did agree 
 amongst themselves and with the wife of the said J. Broome that 
 W. Hamp should not attend to prosecute or give evidence, and should 
 receive, in consideration thereof, 4001. from the said wife of J. Broome, 
 and then alleged that W. Hamp did receive the 400/. The three fol- 
 lowing counts alleged the object to be to defeat and obstruct the due 
 course of law. The prefatory averments were proved, and the wife of 
 J. Broome proved that, prior to the trial for cheating Hamp, she met 
 the now defendants at a tavern ; they said they were sorry to carry 
 on the prosecution ; and if she would give them 500/. they would not 
 do so ; and after some conversation it was arranged that a cheque for 
 400/. should be given, and it was given, and W. Hamp thereupon told 
 her that they would not further prosecute her husband. W. Hamp 
 had been bound by recognizances in 500/. to prosecute. For the de- 
 fendants it was alleged that J. Broome had such influence over W. 
 Hamp that the latter had made an affidavit exculpating J. Broome 
 from any participation in the fraud, and that he was thus placed in 
 the dilemma that, if he did not prosecute, he forfeited his recognizances, 
 
 (c) R. v. Mawbey, 6 T. R. 619 to 638. (d) Doe tlem. Roberts v. Roberts, 2B.& 
 
 A. 367.
 
 chap, xxiv J Of Conspiracy. 499 
 
 and, if he did prosecute, he might be indicted for perjury ; and that 
 Probert, who was his guardian, in order to extricate his ward from this 
 position, had been a party to the compromise, but without any intention 
 to do wrong, or to obstruct the course of justice. But Lord Campbell, 
 C. J., held that, if the necessary effect of the agreement was to defeat the 
 ends of justice, that must be taken to be the object ; and the jury were 
 directed to say, on the first and second counts, whether the defendants 
 did agree not to prosecute as therein alleged ; and on the third and 
 fourth counts whether they conspired to obstruct and defeat the 
 ends of justice. If they did so agree and conspire, whatever might 
 be their private reasons, it was the duty of the jury to convict the 
 defendants, (e) 
 
 Where the plaintiff had been arrested for 38/. at the suit of Cohen, 
 and Blake had become bail for her, and some proceedings had been 
 taken against him as bail, and Blake, Cohen, Swaysland, and Solomon 
 went to the plaintiff's lodgings, and Blake said he must have his 
 money or the plaintiff must go to gaol, and stated that Swaysland and 
 Solomon were officers, which was not the fact ; and the plaintiff being 
 frightened, delivered to Blake a watch and other articles, and Sways- 
 land and Solomon wrote two papers, which were signed by the plaiutiff 
 and Blake, and which papers stated that the articles were deposited 
 with Blake as a security, and that he should be at liberty to sell them 
 within forty-two days unless he was paid in the meantime ; Lord 
 Lyndhurst, C. B., held that, as the defendants all acted in concert, 
 they were guilty of a conspiracy, for which they might all have been 
 indicted. (/) 
 
 It has been held to be an indictable offence to conspire on a 
 particular day by false rumours to raise the price of the public 
 government funds, with intent to injure the subjects who should 
 purchase on that day, and that the indictment was well enough 
 without specifying the particular persons who purchased as the per- 
 sons intended to be injured, and that the public government funds 
 of this kingdom might mean either British or Irish funds, which 
 since the Union were each a part of the United Kingdom. After 
 argument in arrest of judgment, Lord Ellenborough, C. J., said, ' I 
 am perfectly clear that there is not any ground for the motion in 
 arrest of judgment. A public mischief is stated as the object of 
 this conspiracy ; the conspiracy is by false rumours to raise the 
 price of the public funds and securities, and the crime lies in the 
 act of conspiracy and combination to effect that purpose, and would 
 have been complete, although it had not been pursued to its con- 
 sequences, or the parties had not been able to carry it into effect. 
 The purpose itself is mischievous ; it strikes at the price of a ven - 
 dible commodity in the market, and if it gives a fictitious price by 
 means of false rumours, it is a fraud levelled against all the public, 
 for it is against all such as may possibly have anything to do with 
 
 (e) R. v. Hamp, 6 Cox, C. C. 167. Lord conspire, and on its being said that this 
 
 Campbell, C. J., held that the facts did count did not charge a conspiracy, Lord 
 
 not support counts charging a conspiracy Campbell said, ' Nothing turns on that. 
 
 to obtain money from the wife of J. Broome, Conspire is nothing : agreement is the thing.' 
 with intent to cheat him of it. The first (/) Bloomfield v. Blake, 6 C. & P. 75. 
 
 count had only the word, ' agree ' and not
 
 500 Of Conspiracy. [book ii. 
 
 the funds on that particular day.' Bayley, J., 'It is not necessary 
 to constitute this an offence that it should be prejudicial to the 
 public in its aggregate capacity, or to all the King's subjects, but 
 it is enough if it be prejudicial to a class of the subjects. Here 
 then is a conspiracy to effect an illegal end, and not only so, but 
 to effect it by illegal means, because to raise the funds by false 
 rumours is by illegal means. And the end is illegal, for it is to 
 create a temporary rise in the funds without any foundation, the 
 necessary consequence of which must be to prejudice all those who 
 become purchasers during the period of that fluctuation.' Dampier, 
 J., ' I own I cannot raise a doubt, but that this is a complete crime 
 of conspiracy according to any definition of it. The means used are 
 wrong, they were false rumours ; the object is wrong, it was to give 
 a false value to a commodity in the public market, which was inju- 
 rious to those who had to purchase.' (g) 
 
 The defendants were indicted, as directors and promoters of a 
 certain company called the Eupion Fuel and Gas Company, Limited, 
 for conspiring to induce the committee of the Stock Exchange to 
 order a quotation of the shares of the company in their official list, 
 • and thereby to induce and persuade divers of the liege subjects of 
 our Lady the Queen, who should thereafter buy and sell the shares 
 of the said company, to believe that the said company was duly 
 formed and constituted, and had in all respects complied with the 
 rules and regulations of the . . . said Stock Exchange, so as to 
 entitle the said company to have their shares quoted in the official 
 list of the said Stock Exchange,' — Held, that the indictment dis- 
 closed an indictable offence, since there was an agreement to cheat 
 and defraud by means of false pretences those liege subjects who 
 might buy shares in the company, (h) But an indictment charging 
 a conspiracy ' by false pretences to defraud all such persons as should 
 apply ' to the prisoners for a loan of money, was held bad in 
 Ireland, (i) 
 
 In the argument upon the foregoing case an authority was cited 
 where the defendants being acquitted of all but conspiring to 
 impoverish the farmers of the excise, it was objected that there was 
 no offence ; but the Court held it well, because the information 
 showed that the excise was parcel of the revenue of the crown, and 
 so the impoverishment of the farmers of excise tended to prejudice 
 the revenue of the crown. (J) 
 
 It seems that parties may be guilty of a conspiracy to raise the 
 price of oil by making fictitious sales, (k) 
 
 A conspiracy to obtain money by procuring from the lords of the 
 
 (rj) R. v. De Berenger, 3 M. & S. 76. (k) R. v. Hilbers, 2 Chitty Rep. 163. 
 
 R. v. Gurney, 11 Cox, C. C. 414. This was a motion for a criminal informa- 
 
 {h) R. v. Aspinall, 1 Q. B. D. 730 ; 2 tion for a conspiracy to raise the price of 
 
 Q. B. D. 48 ; 13 Cox, C. C. 231 , 45 L. J. oil by making fictitious sales, and the court 
 
 M. C. 129. held that it must appear that two combined 
 
 (i) White v. R., 13 Cox, C. C. 318. together, as it was no offence for an indi- 
 
 (;) R. v. Starling, 1 Sid. 174. 1 vidual separately to endeavour. 
 
 American Note. 
 1 See Bishop ii. s. 225.
 
 chap, xxiv.] Of Conspiracy. 501 
 
 treasury the appointment of a person to an office in the customs is 
 a misdemeanor at common law. The counsel for the defendant 
 proposed to argue that the indictment was bad on the face of it, 
 as it was not a misdemeanor at common law to sell or to purchase 
 an office like that of a coast waiter, and that, however reprehensible 
 such a practice might be, it could only be made an indictable offence 
 by Act of Parliament. But Lord Ellenborough, C. J., said, ' If that be 
 a question it must be debated on a motion in arrest of judgment, or 
 on a writ of error. But after reading the case of B. v. Vaughan, (I) 
 it will be very difficult to argue that the offence charged in the 
 indictment is not a misdemeanor.' And Grose, J., in passing sen- 
 tence, likewise observed that there could be no doubt that the 
 indictment was sufficient, and that the offence charged was clearly a 
 misdemeanor at common law. (m) 
 
 Precedents are to be met with in the books of indictments for con- 
 spiracies to commit riots, (n) And in one case, it was said by a 
 learned judge, with respect to premeditated and systematic tumults 
 at a theatre, that ' the audience have certainly a right to express by 
 applause or hisses the sensations which naturally present themselves 
 at the moment ; and nobody has ever hindered, or would ever ques- 
 tion, the exercise of that right. But if any body of men were to go 
 to the theatre with the settled intention of hissing an actor or even 
 of damning a piece, there can be no doubt that such a deliberate and 
 preconcerted scheme would amount to a conspiracy, and that the per- 
 sons concerned in it might be brought to punishment.' (o) 
 
 Where some of the counts of an indictment charged the defendant 
 with conspiring to cause a great number of persons to meet together 
 for the purpose of exciting discontent and disaffection in the minds of 
 the subjects of the Queen, and for the purpose of exciting the said 
 subjects to hatred and contempt of the government and constitution, 
 and it appeared that a large number of persons had assembled at 
 meetings, at which violent speeches had been made respecting the 
 government and constitution and the people's charter, Alderson, B., 
 told the jury, ' The purpose which the defendants had in view, as stated 
 by the prosecutors, was to excite disaffection and discontent, but the 
 defendants say that their purpose was by reasonable argument and 
 proper petitions to obtain the five points mentioned by their learned 
 counsel. If that were so, I think it is by no means illegal to petition 
 on those points. The duration of Parliaments and the extent of the 
 elective franchise have undergone more than one change by the au- 
 thority of Parliament itself ; and with respect to the voting by ballot, 
 persons whose opinions are entitled to the highest respect are found 
 to differ. There can also be no illegality in petitioning that members 
 of Parliament should be paid for their services by their constituents ; 
 indeed, they were so paid in ancient times, and they were not required 
 to have a property qualification till the reign of Queen Anne, and are 
 now not required to have it in order to represent any part of Scotland 
 or the English Universities.' And the learned Baron directed the 
 
 (l) 4 Burr. 2494. (o) By Mansfield, C. J., in Clifford v. 
 
 (m) R. v. Pollman, 2 Campb. 229. Brandon, 2 Camp. 369. Gregory v. The 
 
 {n) 2 Chit. dim. L. 506, note (a). See Duke of Brunswick, 6 M. & G. 953. 3 C. B. 
 
 K. v. Vincent, 9 C. & P. 91. 481. 1 C & K. 24.
 
 502 Of Conspiracy. [book ii. 
 
 jury to say whether they were satisfied that the defendants conspired 
 to excite disaffection, and if they were to find them guilty of con- 
 spiracy, (p) 
 
 Several cases have occurred in which the conspiring and con- 
 triving, by sinister means, to marry a pauper of one parish to a settled 
 inhabitant of another, in order to bring a charge upon it, have been 
 considered as indictable offences, (q) It is observed respecting a 
 conspiracy of this kind, that, considering the offence is a prostitution 
 of the sacred rites of marriage, for corrupt and mercenary purposes, 
 and that, by artful and sinister means, persons are seduced into a 
 connection for life without any inclination of their own, and contrary 
 to that freedom of choice which is peculiarly required in forming so 
 close an union, and on which the happiness of them both so entirely 
 depends; and this for the sake of some gain or saving to others who 
 bring about such marriage ; in this light it seems a fit ground for 
 criminal cognizance, not only as being a great oppression upon the 
 parties themselves more immediately interested, but as an offence 
 against society in general, being an abuse of that institution by which 
 society is best continued and legal descents preserved, and a perversion 
 of the purposes for which it was ordained. (?•) But where, upon an 
 indictment against parish officers for a conspiracy of this kind, it 
 appeared that a man of one parish having gotten a woman with child 
 belonging to another, the defendants had agreed with the man (who 
 was of the age of 29), with the approbation of his father, to give him 
 two guineas if he would marry the woman, and that he afterwards 
 married her on such condition, and received the money from the 
 defendants immediately after the marriage ; and it was also sworn, 
 both by the man and the woman, that they were willing to marry at 
 the time ; Buller, J., directed an acquittal, notwithstanding the proof 
 of the money having been given to procure such consent ; and this 
 after the putative father had been taken up under a magistrate's war- 
 rant, and was in custody of the overseers. And that learned judge held 
 it necessary, in support of such an indictment, to show that the 
 defendants had made use of some violence, threat, or contrivance, or 
 used some sinister means to procure the marriage without the volun- 
 tary consent or inclination of the parties themselves ; and that the act 
 of marriage, being in itself lawful, a conspiracy to procure it could 
 only amount J;o a crime by the practice of some undue means, (s) 
 
 In a case where the indictment stated the marriage to have been 
 procured by threats and menaces against the peace, &c, it was holden 
 to be sufficient, without averring in terms that the marriage was against 
 the will or consent of the parties, though that must be proved, (t) 
 
 (p) R. v. Vincent, 9 C. & P. 91. See (r) 1 East, P. C. c. 11, s. 11, p. 461. 
 
 O'Connell v. R., 11 CI. & F. 155, post. Since (s) R. v. Fowler, 1 East, P. C. c. 11, 
 
 this case the Ballot Act has passed (see 35 & p. 461. And the learned judge said that this 
 
 36 Vict. c. 33) ; and the property qualifica- point had been so ruled several times by 
 
 tion of members of Parliament has been several judges, 
 abolished by 21 & 22 Vict. c. 26. 1 (/) R. v. Parkhouse, 1 East, P. C. c. 11, 
 
 (7) R. v. Tarrant, 4 Burr. 2106. P. v. s. 11, p. 462, Buller, J. 
 Herbert, 1 East. P. C. c. 11, s. 11, p. 461. 
 R. v. Compton, Cald. 246. 8 Mod. 320. 
 
 American Note. 
 1 As to conspiracy to excite discontent in America, see Bishop ii. s. 224.
 
 chap, xxiv.] Of Conspiracy. 503 
 
 And it has since been held that an indictment does not lie for con- 
 spiracy merely to exonerate one parish from the charge of a pauper 
 and to throw it on another, nor for conspiring to cause a male pauper 
 to marry a female pauper for that purpose, it not being stated that the 
 conspiracy was to effect such marriage by force, threats, or fraud, or 
 that it was so effected in pursuance of the conspiracy, (u) An allega- 
 tion in such an indictment that a poor unmarried woman in a parish 
 was with child is not equivalent to an allegation that she was charge- 
 able to such parish, (v) And it has been doubted whether an alle- 
 gation that the defendants conspired together for the purpose of 
 exonerating, is equivalent to allegation that they conspired to 
 exonerate, (w) 
 
 Upon an indictment for conspiring together, and giving the husband 
 money to marry a poor helpless woman, who was an inhabitant of B., 
 in order to settle her in the parish of A., where the husband was settled, 
 judgment was arrested, because it was not averred that she was last 
 legally settled in B. (x) But it is observed, that it seems to be per- 
 fectly immaterial where the woman's settlement was, if it were not in 
 A., provided that fact distinctly appeared, (y) It is further said, how- 
 ever, that it is usual to aver the settlements of the parties in their 
 respective parishes, and also that the woman was chargeable to her 
 own parish at the time, though this latter has never been adjudged to 
 be necessary, nor seems to be required according to the general rules 
 which govern the offence of conspiracy, (z) It should seem that in 
 such cases both the purpose and the means used are clearly unlawful. 
 
 Conspiring to let a pauper land to the intent that he may gain a 
 settlement is illegal, (a) 
 
 Conspiring to charge a man with being the father of a bastard child, 
 with intent to extort money from him, is indictable ; and where the 
 object is stated to be to extort money, it is immaterial whether the 
 woman is or is not pregnant, (b) And conspiring to make such a 
 charge, though without any intent to extort money, is indictable ; and 
 it is not necessary to state in the indictment that the charge was false, 
 or that the child was likely to be chargeable. The court doubted 
 upon the objection that the charge was not stated to be false, but ulti- 
 mately they held the indictment to be sufficient, as the defendants 
 were at least charged with conspiring to accuse the prosecutor of forni- 
 cation, and although that was spiritual defamation, conspiring to do 
 it was a temporal offence, (c) 
 
 The frauds practised by swindlers may sometimes be indictable as 
 conspiracies. In a case where the prisoner had been acquitted upon 
 a charge of forgery, he was afterwards indicted with two of his asso- 
 ciates for a conspiracy to defraud. The indictment charged that the 
 defendants Hevey, Beatty, and M'Carty, fraudulently and unlawfully 
 conspired that Beatty should write his acceptance to a certain paper- 
 
 (u) R. p. Seward, 1 A. & E. 706. 3 N. (x) R. v. Edwards, 8 Mod. 320. 
 
 & M. 557. (y) 1 East, P. C. c. 11, s. 11, p. 462. 
 
 (o) Per Lord Denman, C. J., and Taun- (z ) Id. ibid, 
 
 ton, J., ibid. (a) Per cur. R. v. Edwards, 8 Mod. 320. 
 
 (w) Per Williams, J., ibid., citing R. v. (b) R. v. Armstrong, 1 Ventr. 304. 1 
 
 Nield, 6 East, 417. But see R. v. Ridg- Lev. 62. Sid. 68. 
 
 way, 5 B. & Aid. 527, where R. v. Nield (c) R, v. Best, 2 Lord Raym. 1167. 
 was doubted by Lord Tenterden, C. J.
 
 504 Of Conspiracy. [book ii. 
 
 writing, purporting to be a bill of exchange, &c. (the tenor of which 
 was set out) in order that Hevey might, by such acceptance, and by 
 the name M'Carty being indorsed on the back thereof, negotiate the said 
 paper- writing as a good bill of exchange, truly drawn at Bath, by one 
 Jer. Connell, for Smith and Co., as partners in the business of bankers, 
 under the style of Bath Bank, as persons well known to them the said 
 defendants, and thereby fraudulently to obtain from the King's sub- 
 jects goods and monies ; that Beatty, in pursuance of such conspiracy 
 and agreement, did fraudulently and unlawfully write his acceptance, 
 to the said paper-writing to the tenor following, viz., ' Accepted, 20 
 Nov. — 81, R B.,' well knowing the firm of Smith & Co. to be ficti- 
 tious ; that the defendants procured the indorsement ' B. M'Carty ' to 
 be written on the same, and that the said Hevey, in pursuance of such 
 fraudulent conspiracy, did utter the said paper-writing to one S. Read, 
 as and for a good bill of exchange, truly drawn, &c, and accepted by 
 the said Beatty as a person able to pay the said sum of 30/.,«in order 
 to negotiate the same, and by means thereof did fraudulently obtain 
 a gold watch, value twelve guineas, and 11. 8s. in money ; whereas, in 
 truth, at the time of drawing, accepting, and uttering the said bill, 
 there were no such persons as Smith and Co. in the business of bankers 
 at Bath, and the said Beatty was not of sufficient ability to pay the 
 said 30/., they, the defendants, well knowing the same, &c, whereby 
 they defrauded the said S. Eead of the said goods and monies. The 
 facts so charged being fully proved, the defendants were convicted, (d) 
 
 In one case the defendants were convicted on an indictment which 
 charged them with a conspiracy to cause themselves to be believed 
 persons of large property for the purpose of defrauding tradesmen, (e) 
 
 The getting of goods on credit without meaning to pay for them 
 may not be criminal or punishable ; but for several to combine to- 
 gether to enable a person to get goods on credit by means of a 
 false character, knowing that he did not intend to pay for them, is 
 criminal. (/) 
 
 Where in an action for slander it appeared that certain brokers 
 were in the habit of agreeing together to attend sales by auction, and 
 that one of them only should bid for any particular article, and that 
 after the sale they should have a meeting consisting of themselves 
 only, at another place, to put up to sale among themselves, at a fair 
 price, the goods that each had bought at the auction, and that the 
 difference between the price at which the goods were bought at the 
 auction, and the fair price at this private resale, should be shared 
 among them ; Gurney, B., was of opinion that, as owners of goods had 
 a right to expect at an auction that there would be an open competi- 
 tion from the public, if a knot of men went to an auction upon 
 an agreement among themselves of the kind that had been described, 
 they were guilty of an indictable offence, and might be tried for a 
 conspiracy, (g) 
 
 A mock auction, with sham bidders, who pretend to be real bidders, 
 
 {d) R. v. Hevey, 2 East, P. C. c. 19, s. 5. Ellenborough, C. J. See R. v. Whitehouse, 
 Anonymous, 1782. MSS. Bayley, J., Rose. 6 Cox, C. C. 38, post, p. 536. 
 Cr. Evid. 368. ( f) R. v. Orman, 14 Cox, C. C. 381, per 
 
 (e) R. v. Roberts, 1 Campb. 399. Lord Bramwell, L. J. 
 
 (g) Levi v. Levi, 6 C. & P. 239.
 
 chap, xxiv.] Of Conspiracy. 505 
 
 for the purpose of selling goods at prices grossly above their worth, is 
 an offence at common law ; and persons aiding or abetting such a pro- 
 ceeding may be indicted for a conspiracy with intent to defraud, (h) 
 
 Where an indictment alleged that a certain joint stock company 
 had been established, the capital of which was to consist of 2,000 
 shares, and charged the defendants with conspiring to fabricate a 
 great number of other shares in addition to the said 2,000, and it ap- 
 peared that the company had not been legally established, Abbott, 
 C. J., was of opinion that if, in point of fact, a combination to the 
 effect stated in the indictment were made out, such conduct, in point 
 of law, constituted an offence punishable in a criminal way, notwith- 
 standing the original imperfection of the company's formation, (i) 
 
 The selling unwholesome provisions is, as we have seen, an indict- 
 able offence ; and the following case of bartering bad and unwholesome 
 wine appears to have been treated as a conspiracy. The indictment 
 charged that the defendants, Fordenborough and Mackarty, falsely and 
 deceitfully intending to defraud Thomas Chowne of divers of his 
 goods, &c, together deceitfully bargained with him to barter, sell, 
 and exchange a certain quantity of pretended wine, as good and 
 true new Portugal wine, of him the said Fordenborough, for a cer- 
 tain quantity of hats of him the said Chowne ; and that, upon such 
 bartering, &c, the said Fordenborough pretended to be a merchant 
 of London, and to trade as such in Portugal wines, when, in fact, 
 he was no such merchant, nor traded as such in wines ; and the said 
 Mackarty, on such bartering, &c, pretended to be a broker of London, 
 when, in fact, he was not, and that the said Chowne, giving credit 
 to the said fictitious assumptions, personating, and deceits, did barter, 
 sell, and exchange to Fordenborough, and did deliver to Mackarty, 
 as the broker between the said Chowne and Fordenborough, for the use 
 of Fordenborough, a certain quantity of hats, of a certain value, for 
 so many hogsheads of the pretended new Portugal wine ; and that 
 Mackarty and Fordenborough, on such bartering, &c, affirmed that it 
 was true New Lisbon wine of Portugal, and was the wine of Forden- 
 borough, when, in fact, it was not Portugal wine, nor was it drinkable 
 or wholesome, nor did it belong to Fordenborough, to the great deceit 
 and damage of the said Chowne, and against the peace, &c. (/) It is 
 observed of this indictment, which was for a cheat at common law, 
 that though it did not charge that the defendants conspired eo nomine, 
 yet it charged that they together, &c, did the acts imputed to them, 
 which might be considered to be tantamount, (k) The case was con- 
 sidered as one of doubt and difficulty, but it seems that judgment was 
 ultimately given for the crown, on the ground that the offence was 
 conspiracy. (I) 
 
 A count alleged that the prisoners unlawfully did conspire by 
 divers unlawful and fraudulent devices and contrivances, and by divers 
 false pretences, unlawfully to win from A. Pthodes the sum of 21. 10s. 
 of his money, and unlawfully to cheat him of the same. The prisoners 
 and Khodes were in a public house, and in concert with the other two 
 
 (h) R. v. Lewis, 11 Cox, C. C. 404. (k) 2 East, P. C. c. 18, s. 5. 
 
 (i) R. v. Mott, 2 C. & P. 521. {I) 2 East, ibid. 
 
 (j) R. v. Mackarty, 2 Lord Ravm. 1179. 
 2 East, P. C. c. 18, s. 5.
 
 506 Of Conspiracy. [book ii. 
 
 prisoners, J. Dewhurst placed a pen-case on the table, and left the 
 room to get writing-paper. Whilst he was absent the other prisoners, 
 Hudson and Smith, were alone with Rhodes, and Hudson took up the 
 pen-case, and took the pen from it, placing a pin in the place of it, 
 and put the pen he had taken out under the bottom of Rhodes' drink- 
 ing-glass, and Hudson then proposed to Rhodes to bet Dewhurst, when 
 he returned, that there was no pen in the pen-case. Rhodes was 
 induced by Hudson and Smith to stake fifty shillings in a bet with 
 Dewhurst that there was no pen in the pen-case, which money Rhodes 
 placed on the table, and Hudson snatched up to hold. The pen-case 
 was then turned up into Rhodes' hand, and another pen with the pin 
 fell into his hand, and then the prisoners took his money. It w T as 
 contended, on a case reserved, that this was a mere deceit not con- 
 cerning the public, and that there was no false pretence on which any 
 of the prisoners could have been convicted of obtaining money by 
 false pretences. The prosecutor intended to cheat Dewhurst, and was 
 a party to the fraud, and could not maintain this indictment. Pol- 
 lock, C. B., ' We are all of opinion that the conviction is good. The 
 expression " by false pretences " used in the count is not to be con- 
 strued in the technical sense contended for by the counsel for the 
 prisoners. We think that there was abundant evidence of a con- 
 spiracy to cheat. Though it be an ingredient in that conspiracy to 
 induce the man who is cheated to think that he is cheating some one 
 else, that does not prevent those who use that device from being 
 amenable to punishment.' (n) 
 
 Where a woman, living in the service of her master, conspired with 
 another man that he should personate her master, and in that char- 
 acter should solemnize a marriage with her, which was accordingly 
 done, for the purpose of afterwards raising a specious title to the 
 property of the master ; the gist of the indictment was for the con- 
 spiracy, and the conviction was founded on that ground. And it was 
 considered in this case that, though no actual injury was proved, yet 
 it was the province of the jury to collect, from all the circumstances 
 of the case, whether there was not an intention to do a future injury 
 to the person whose name was assumed, (o) 
 
 And a conviction has taken place upon an indictment, which 
 charged that M. A. Wrench was a person of ill-fame and bad char- 
 acter, and a common prostitute, and that W. B. Serjeant was an 
 infant within the age of 21 years, and that M. A. W. and P. D. and 
 S. J., intending to defraud the said W. B. S. of his property, con- 
 spired for the purpose aforesaid to procure a marriage to be solemnized 
 
 (?0 R. v. Hudson, Bell, C. C. 263. Chan- (o) R. v. Taylor, 1 Leach, 37. 2 East, 
 
 nell, B., ' If the count had omitted the P. C. c. 20, s. 6, p. 1010. See Wade v. 
 
 words "by false pretences," it would have Broughton, 3 Ves. & B. 172, that persons 
 
 been good.' Blackburn, J., 'If proof was conspiring to procure the marriage of a 
 
 given of an agreement by fraudulent devices female for the sake of her fortune may be 
 
 to obtain the money, which is the substance indicted for a conspiracy, 
 of the third count, is there not evidence 
 for the jury ? ' 1 
 
 American" Xote. 
 
 1 In Xew York however it was held that the act criminal in him, no conviction could 
 where the complainant parted with his be had. P. v. Stetson, 4 Barb. 151. 
 money under such circumstances as to make
 
 chap, xxiv.] Of Conspiracy. 507 
 
 between the said W. B. S. and the said M. A. W., by means of a false 
 oath to be taken by the said M. A. W., and by divers false pretences, 
 and without the consent of the mother of the said W. B. S., his 
 father being dead, and that the said M. A. W. and P. D. and S. J., in 
 pursuance of the said conspiracy, did prevail on the said W. B. S. to 
 consent to marry the said M. A. W., and by means of such persuasion, 
 and by means of a false oath taken by the said M. A. W., in order to 
 obtain a licence for the solemnization of marriage between the said 
 W. B. S. and the said M. A. W., did cause the said W. B. S. to marry 
 the said M. A. W., and a marriage by such licence was accordingly 
 solemnized between them, without the leave of the mother of the 
 said W. B. S., who then was such infant as aforesaid, (p) 
 
 The seduction of a young woman may be attended with such 
 circumstances as to be indictable as a conspiracy. A case is reported 
 where Lord Grey and others were charged, by an information at com- 
 mon law, with conspiring and intending the ruin of the Lady Hen- 
 rietta Berkeley, then a virgin unmarried, within the age of eighteen 
 years, one of the daughters of the Earl of Berkeley (she being under 
 the custody, &c, of her father), and soliciting her to desert her father, 
 and to commit whoredom and adultery with Lord Grey, who was the 
 husband of another daughter of the Earl of Berkeley, sister of the 
 Lady Henrietta, and to live and cohabit with him ; and, further, the 
 defendants were charged, that in prosecution of such conspiracy, they 
 took away the Lady Henrietta at night from her father's house and 
 custody, and against his will, and caused her to live and cohabit in 
 divers secret places with Lord Grey, to the ruin of the lady and to the 
 evil example, &c. The defendants were found guilty, though there 
 was no proof of any force, but, on the contrary, it appeared that the 
 lady, who was herself examined as a witness, was desirous of leaving 
 her father's house, and concurred in all the measures taken for her 
 departure and subsequent concealment. It was not shown that 
 any artifice was used to prevail on her to leave her father's house ; 
 but the case was put upon the ground that there was a solicitation 
 and enticement of her to unlawful lust by Lord Grey, who was the 
 principal person concerned, the others being his servants, or persons 
 acting by his command, and under his control, (q) 
 
 A count charged that the prisoners did between themselves 
 conspire, combine, confederate, and agree together knowingly and 
 designedly to procure, by false representations, false pretences, and 
 other fraudulent means, J. C., a poor child, under the age of twenty- 
 one years, to wit, of the age of fifteen years, to have illicit carnal 
 connection with a man whose name is to the jurors unknown, and, 
 upon a case reserved, the judges were unanimously of opinion that 
 this count charged an indictable offence at common law. (r) 
 
 A count alleged that the prisoners unlawfully conspired, &c, to 
 solicit, persuade, and procure, and in pursuance of the said conspiracy 
 did unlawfully solicit, incite, and endeavour to procure L M., an 
 
 (j>) R. v. Serjeant, R. & M. N. P. R. {,-) R. v. Mears, 2 Den. C. C. 79. The 
 
 352. indictment also contained two counts framed 
 
 (q) R. v. Lord Grey, 3 St. Tri. 519. to charge an attempt to commit the offence 
 
 1 East, P. C. c. 11, s. 10, p. 460. See also created by the 12 & 13 Vict. c. 76 ; but 
 
 R. v. Delaval, 3 Burr. 1434. no opinion was expressed as to these counts.
 
 508 Of Conspiracy. [book ii. 
 
 unmarried girl, within the age of eighteen years, to become and be a 
 common prostitute, and to commit whoredom and fornication for lucre 
 and gain with men ; and it was urged, in arrest of judgment, that the 
 count was bad, as it did not aver that the girl was chaste ; the fact of 
 a loose woman committing fornication was not punishable by law ; 
 but it was held that the count was good, as it charged a conspiracy to 
 bring about an illegal condition of things, (s) 
 
 An indictment has been held to lie against several persons for con- 
 spiring to carry away a young female under the age of twenty-one 
 from the custody of her parents and instructors, and afterwards to 
 marry her to one of the offenders, contrary to the provisions of the 
 4 & 5 Ph. & M. c. 8, ss. 3 & 4, and also for conspiring to commit the 
 capital felony (under the 3 Hen. 7, c. 2, s. 1) of taking away an heiress 
 against her will, and afterwards marrying her to one of the defend- 
 ants. The young lady, who was the heiress of a gentleman of large 
 fortune, and was only fifteen years of age, had been placed under the 
 care of some ladies at Liverpool, for the purpose of finishing her educa- 
 tion, and was induced to leave their house by means of a fictitious 
 letter, fabricated by the defendants, who conveyed her to Gretna 
 Green, where she was induced by means of false representations to 
 go through the ceremony of a Scotch marriage, and to consent to 
 become the wife of one of the defendants : and the defendants were 
 convicted, (t) 
 
 A case is reported where several persons were convicted on an 
 indictment which charged them with conspiring to impoverish one 
 H. B., a tailor, and to prevent him, by indirect means, from carrying 
 on his trade, (u) This, however, appears to have been considered as 
 a conspiracy in restraint of trade, and so far a conspiracy to do an 
 unlawful act affecting the public, (v) 
 
 If traders conspire to defeat their creditors by disposing of their 
 goods in contemplation of bankruptcy, they are guilty of a conspiracy 
 at common law. (w) 
 
 So if bankers combine to deceive and defraud their shareholders 
 by publishing false balance sheets, they are indictable for a con- 
 spiracy, (x) 
 
 Where the prisoners were indicted for a conspiracy to cheat one 
 Edwards, and the case was that the prisoners had made false repre- 
 sentations as to the amount of profits of a business carried on by 
 one of them, and thereby induced Edwards to enter into partner- 
 ship with one of them ; it was held, that they were liable to be 
 indicted for the conspiracy, although no action might lie for the 
 false representation, as it was not in writing so as to satisfy the 9 
 Geo. 4, c. 14, s. 16. {y) 
 
 (s) R. v. Howell, 4 F. & F. 160, Bram- (it) R. v. Eccles, 1 Leach, 274. 
 
 well, B., and the Recorder. (v) By Lord Ellenborough, C. J., in B. 
 
 [t] R. v. Wakefield, 2 Lew. 1. The v. Turner, 13 East, 228. See per Lord 
 
 marriage being in Scotland, an indictment Campbell, C. J., R. v. Rowlands, 17 Q. B. 
 
 for felony under the 3 Hen. 7, c. 2, s. 1, 671, and per Fry, L. J. in Mogul Steamship 
 
 could not have been supported, and there Co. v. M'Gregor, Gow & Co., 23 Q. B. D. 
 
 was no evidence to support an indictment at p. 631. 
 
 under the 4 & 5 Ph. & M. c. 8, s. 4. An (?/•) R. v. Hall, 1 F. & F. 33, Watson, B. 
 
 indictment was preferred upon the 4 & 5 (x) R. v. Esdaile, 1 F. & F. 213. 
 
 Ph. & M. c. 8, s. 3, but no judgment given (y) R. v. Timothy, 1 F. & F. 39, Chan- 
 
 upon it. nell, B.
 
 chap, xxiv.] Of Conspiracy. 509 
 
 An indictment will not lie for conspiring to commit a civil trespass 
 upon property, by agreeing to go, and by going into, a preserve for 
 hares, the property of another, for the purpose of snaring them, though 
 it be alleged to be done in the -night-time, and that the defendants 
 were armed with offensive weapons, for the purpose of opposing 
 resistance to any endeavours to apprehend or obstruct them. And 
 Lord Ellenborough, C. J., in pronouncing the judgment of the Court, 
 said, ' I should be sorry that the cases in conspiracy against indi- 
 viduals, which have gone far enough, should be pushed still farther. 
 I should be sorry to have it doubted whether persons agreeing to go 
 and sport upon another's ground, in other words, to commit a civil 
 trespass, should be thereby in peril of an indictment for an offence 
 which would subject them to infamous punishment.' (z) It may be 
 observed that it was not stated in the indictment that the weapons 
 were dangerous, nor that the defendants conspired to go, &c, with 
 strong hand. 
 
 But this case is overruled by R. v. Rowlands, (a) where Lord Camp- 
 bell, C. J., said, ' I have no doubt whatever that it was wrongly decided. 
 Going into the prosecutor's close against his will, armed with offensive 
 weapons for the purpose of opposing any persons who should endea- 
 vour to apprehend, obstruct, or prevent them, would in itself be an 
 indictable offence ; and conspiring to commit such an offence must be 
 an indictable conspiracy.' 
 
 It is now settled that persons may be guilty of a conspiracy to 
 defraud another in the fraudulent sale of a horse. Thus where the 
 defendants conspired to make a false representation that horses were 
 the property of a private person and not of a horse-dealer, and were 
 quiet to ride and drive, and thereby induced a gentleman to buy them 
 at a large price, they were held to have been rightly convicted on a 
 count which charged them with conspiring by false pretences and 
 subtle means to cheat the gentleman of his money, (b) Where a per- 
 son was indicted for soliciting a servant to conspire to cheat and 
 defraud his master, and it was proved that such person had offered a 
 bribe to the servant as an inducement to sell his master's goods 
 at less than their value, it was held that he might properly be 
 convicted, (c) 
 
 An indictment against Brown and Carlisle for conspiracy alleged 
 that one Sibson sold to Brown a mare for 39^., and that the prisoners, 
 whilst the said sum was tinpaid, conspired by false and fraudulent 
 representations that the said mare was unsound of her wind, and that 
 
 (z) R. v. Turner, 13 East, 228, 231. But c. 69, and it is conceived that a conspiracy 
 
 qu. as to that which is reported in this case to commit an offence within that statute 
 
 (p. 230) to have been said by Lord Ellen- would be indictable, although not carried 
 
 borough in the course of the argument, viz. into effect. See R. v. Wakefield, supra. 
 
 that 'all the cases in conspiracy proceed See also the observations on this case in 
 
 upon the ground that the object of the Deac. Game L. 175. C. S. 
 
 combination is to be effected by some fal- (a) 17 Q. B. 671. x 
 
 sity.' The facts stated in this case would (b) R. v. Kenrick, 5 Q. B. 49. 
 
 constitute an offence within the 9 Geo. 4, (c) R. v. De Kromme, 17 Cox, 492. 
 
 American Note. 
 1 See also Bishop ii. s. 183, as to these able conpiracy to enter upon lands and hold 
 cases, and it seems there may be an indict- possession of them. Wilson v. C, 96 Pa. 56.
 
 510 Of Conspiracy. [book ii. 
 
 she had been examined by a veterinary surgeon, who had pronounced 
 her a roarer, and that Brown had sold her for 111. to induce Sibson to 
 receive a much less sum in payment for the said mare than Brown 
 had agreed to pay Sibson for the same, and thereby to cheat Sibson 
 of a large part of the said sum agreed to be paid for the said mare. 
 The mare had been sold by Sibson to Brown for the price as alleged, 
 and Sibson had agreed to trust Brown for the price till after a fair. 
 The prisoners afterwards conspired to send a false account of the 
 mare to Sibson, and thereby to get him to forego part of the agreed 
 price ; and, in pursuance of this conspiracy, they sent a letter to Sib- 
 son, stating that the mare was unsound of her wind and had been 
 examined by a veterinary surgeon, and he had pronounced her a 
 roarer. In consequence of this letter Sibson saw Carlisle, who stated 
 that he had examined the mare and that she was unsound, which he 
 knew to be false. Sibson afterwards saw Brown, who told him that 
 he had sold the mare for 111. only (which was false), and persuaded 
 him to receive that sum in satisfaction of his claim, but no receipt or 
 other discharge was given. It was contended that no indictable of- 
 fence had been proved or charged ; for that the facts proved and alleged 
 did not and could not alter the position of Sibson, as the payment of 
 a smaller sum was no satisfaction of the larger sum, for which he had 
 sold the mare, and he might afterwards enforce the payment of the 
 residue. But, upon a case reserved, it was held that the indictment 
 was sustainable, and that the facts given in evidence did sustain it. 
 The substance of the charge was that the prisoners conspired to use 
 unlawful means, namely, false representations, to induce the prosecutor 
 to forego a part of his claim ; and there was no force in the argument 
 that, because the prisoners did not by means of their false represen- 
 tations alter the right of the prosecutor to his full claim, the indict- 
 ment is not sustainable ; since in no case where a change is made in 
 the possession of a chattel through a fraud is the property altered. 
 It was not necessary that the fraud should be successful. The 
 offence charged and proved came within the legal definition of a 
 conspiracy, (d) 
 
 An indictment cannot be supported for a conspiracy to deprive a 
 man of the office of secretary to an illegal unincorporated trading 
 company. Lord Ellenborough, C. J., said that the society being cer- 
 tainly illegal, to deprive an individual of an office in it could not be 
 treated as an injury : and that when the prosecutor was secretary to 
 the society, instead of having an interest which the law would pro- 
 tect, he was guilty of a crime, (c) 
 
 The prisoner, a foreigner, was indicted for conspiring at Eamsgate 
 with the owner, the master, and the mate of a ship, to cast away the 
 ship, with intent to prejudice the underwriters. The ship was a Prus- 
 sian merchant vessel, named the Alma, and arrived at Eamsgate, and 
 afterwards sailed thence, and she was in six days' time scuttled and 
 
 (il) R. v. Carlisle, Dears. C. C. 337 ; R. borough, C. J., 1 Campb. 549, in the notes. 
 v. Read, 6 Cox, C. C. 134. See R. v. Hunt, 8 C. & F. 642. J 
 
 (e) R. v. Stratton, cor. Lord Ellen- 
 
 Amekicax Note. 
 i See S. v. Flynn, 28 Iowa, 26.
 
 chap, xxiv.] Of Conspiracy. 511 
 
 sunk by the prisoner and others. The prisoner was apprehended, 
 and made statements implicating himself, the captain, and the mate 
 He said that the mate had said in Kamsgate that the ship would 
 never reach her place of destination, and spoke of the making away 
 of the ship in an unlawful manner; and when the prisoner said, 
 ' Then we had better sink her here at once on the bar,' the mate 
 replied that was too close to land to make away with the ship in 
 an unlawful manner, or to sink her. Martin, B., told the jury, 
 ' The ship was a foreign ship, and she was sunk by foreigners far 
 from the English coast, and so out of the jurisdiction of our courts. 
 But the conspiracy in this country to commit the offence is criminal 
 by our law. And this case does not raise the point which arose in 
 R. v. Bernard, 1 F. & F. 240, as to a conspiracy limited to a criminal 
 offence to be committed abroad. For here, if the prisoner was party 
 to the conspiracy at all, it was not so limited ; for it was clearly con- 
 templated that the ship might be destroyed off the bar at Eamsgate, 
 which would be within the jurisdiction. The offence of conspiracy 
 would be committed by any persons conspiring together to commit an 
 unlawful act to the prejudice or injury of others, if the conspiracy 
 was in this country, although the overt acts were abroad. . . . The 
 question is, was it agreed by and between the prisoner and any other 
 person at Eamsgate that the ship should be destroyed, whether at sea 
 or in port ? ' (/) 
 
 A partnership consisting of the prisoner and L. carried on business 
 abroad. The prisoner gave notice under the articles of partnership 
 to dissolve the partnership. An account of the partnership property 
 had to be taken on the dissolution, and upon such account, after pay- 
 ment of partnership liabilities, the partnership assets were to be divided 
 between the prisoner and L. The prisoner agreed with W. and P. to 
 forge documents, and to make false entries in the partnership books 
 and accounts, so as to make it appear that debts existed and were 
 owing which did not exist, so as to reduce the amount divisible be- 
 tween the partners on the dissolution, with intent to cheat and defraud 
 L. Held, that the prisoner was rightly convicted of conspiring with 
 W. and P. to defraud L. (g) 
 
 Where complaint was made before a magistrate that certain mem- 
 bers of the House of Lords had conspired to deceive the House by 
 stating that a charge of falsehood contained in a petition presented 
 to the House was false, though they knew it to be true, in order to 
 prevent the prayer of the petition from being granted, to the injury 
 of the petitioner, — Held, that the complaint did not charge an in- 
 dictable offence, as an agreement by members of either house to make 
 defamatory speeches there could not be the subject of an indictment, (h) 
 
 The Trade Union Act, 1871, and the Act amending the law of con- 
 spiracy in trade disputes are noticed post, p. 544. 
 
 We have seen that from the nature of conspiracy it is an offence 
 which cannot be charged as having been committed by one person 
 only, (i) And upon this ground it has been holden that no prosecu- 
 tion for a conspiracy can be maintained against a husband and wife 
 
 (/) R. v. Kohn, 4 F. & F. 68. (h) Ex parte Wason, 33 L. J. Q. B. 302. 
 
 \g) R. v. WarburtoD, 40 L. J. M. C. 22. (i) Ante, p. 491.
 
 512 
 
 Indictment. 
 
 [book II. 
 
 only, because they are esteemed but oue person in law, and presumed 
 to have but one will, (j) But husband, wife, and another may be con- 
 victed of a conspiracy, (k) So if all the defendants who are prosecuted 
 for a conspiracy be acquitted but one, and the conspiracy be not stated 
 as having been had with persons unknown, the acquittal of the rest is 
 the acquittal of that one also. (I) But if two persons be indicted for 
 a conspiracy, and one only of them appear and take his trial, he may 
 be found guilty, though the other defendant be absent, and has not 
 pleaded ; (m) and this, although the other conspirator named in the 
 indictment was dead before the indictment was preferred, (w) or after 
 pleading not guilty, (o) 
 
 All the counts of an indictment alleged that Thompson, Tillotson, 
 and Maddock conspired, &c, ' with divers other persons to the jurors 
 aforesaid unknown.' The jury stated their opinion, upon the evidence, 
 to be that Thompson had conspired with either Tillotson or Maddock. 
 but that they did not know with which. No evidence was given of 
 participation by any other party ; and thereon the judge directed a 
 verdict of not guilty, as to Tillotson and Maddock, and a verdict of 
 guilty as to Thompson ; and it was held that as Tillotson and Maddock 
 had been acquitted, the verdict could not be supported against Thomp- 
 son. (j>) 
 
 (j) 1 Hawk. P. C. c. 72, s. 8. 
 
 (k) R. v. Whitehouse, 6 Cox, C. C. 38, 
 Piatt, B. 
 
 (I) 1 Hawk. P. C. c. 72, s. 8. 3 Chit. 
 Crim. L. 1141. 
 
 (m) R. v. Kinnersley, 1 Str. 193. 
 
 (n) R. v. Nicholls, 2 Str. 1227. But see 
 the case better reported in 13 East, 412, in 
 the notes. 
 
 (o) R. v. Kenrick, 5 Q. B. 49. 
 
 (p) R. v. Thompson, 16 Q. B. 832. 
 Erie, J., dissentientc. Lord Campbell, C. J., 
 Patteson, J., and Coleridge, J., rested the 
 decision on the ground that ' other persons ' 
 must mean persons other than Tillotson and 
 Maddock ; and that the acquittal of those 
 defendants, therefore, must have the same 
 effect as if Thompson, Tillotson, and Mad- 
 dock, had alone been charged with the con- 
 spiracy ; in which case it was clear Thomp- 
 son must have been acquitted : and Patte- 
 son, J. , said, ' I cannot see how Thompson 
 can be convicted of conspiring with persons 
 unknown ; upon the evidence he conspired, 
 if at all, with Tillotson or Maddock.' Erie, 
 J., was of opinion that, 'according to the 
 rules of pleading, this charge, as to each 
 individual, must be construed as if he were 
 charged solely, and it follows that the ac- 
 quittal of the two becomes immaterial ; and 
 the verdict may be found in any terms com- 
 prised in the indictment. The finding may 
 be that Thompson conspired with Tillotson, 
 or with Maddock, or with other persons un- 
 known ; and so there may be similar findings 
 as to the others. Therefore if any one be 
 found guilty, the verdict must stand as 
 against him ; the judge must take the opin- 
 ion of the jury as to each, whatever be the 
 finding as to the others. " Are you of opin- 
 
 ion that Thompson conspired with Tillot- 
 son?" "No." " With Maddock ? " "No. 
 But we are satisfied that he conspired with 
 some one ; we do not know whom." The 
 conspiracy, then, cannot be truly predi- 
 cated of either Tillotson or Maddock, 
 because the jury do not know which of 
 these two was the conspirator ; they do, 
 however, know that one of them was ; so 
 that against Thompson, the verdict should 
 be that he conspired with some one, it is 
 not known with whom.' This decision 
 deserves reconsideration. It is a fallacy to 
 suppose that the expression ' a person to the 
 jurors unknown,' means a person absolutely 
 unknown : it merely means any person whose 
 identity is not sufficiently proved to the 
 satisfaction of the jury ; and it cannot be 
 doubted that if Thompson had been charged 
 with conspiring with a person to the jurors 
 unknown, a verdict of guilty ought to have 
 been entered on this finding of the jury. 
 Suppose a count for stealing the coat of A., 
 another the coat of C, and a third of a 
 person unknown, the jury find that the 
 coat belongs to A. or B., but they cannot 
 say which, this is a verdict of guilty on 
 the third count. This indictment was in 
 the form which has been in use for ages 
 in conspiracy and riot, and was originally 
 introduced, and has always been used, for 
 the very purpose of avoiding an acquittal 
 where the evidence might fail to satisfy the 
 jury that any of the persons named were 
 parties to the offence. In R. v. Sudbury, 
 1 Lord Raym. 484, where two out of four 
 persons charged with a riot had been ac- 
 quitted, Lord Holt, C. J., said, ' If the 
 indictment had been that the defendants, 
 with divers other disturbers of the peace,
 
 CHAP. XXIV.] 
 
 Of Conspiracy . 
 
 513 
 
 Where to an indictment against four for a conspiracy, two pleaded 
 not guilty ; one pleaded in abatement, to which plea there was a de- 
 murrer ; and the fourth never appeared ; and before the argument of 
 the demurrer the record was taken down for trial, and one of the de- 
 fendants who had pleaded not guilty acquitted, and the other found 
 guilty of conspiracy with him who had pleaded in abatement ; and the 
 demurrer was afterwards argued, and judgment of respondeat ouster 
 given, whereupon a plea of not guilty was pleaded ; the Court of King's 
 Bench held that judgment might be pronounced upon the one that had 
 been found guilty before the trial of the other defendant ; for although 
 it was possible that such defendant might be acquitted, yet the court 
 were not warranted in coming to the conclusion that that would be so 
 against the verdict that had been found, or in forbearing to pronounce 
 judgment upon the defendant who had been found guilty, (q) So 
 where three prisoners were indicted in Ireland for the capital offence 
 of conspiring to murder, and, having refused to join in their challenges, 
 one of them was tried alone and convicted ; it was held, on a case re- 
 served, that he had been properly tried and convicted, and that there 
 was no ground for respiting or arresting the judgment, (r) But where 
 two persons are indicted for conspiring together and they are tried 
 together, both must be acquitted or both convicted, and where the jury 
 convict one but disagree as to the other the conviction is bad. (s) 
 
 &c, had committed this riot and battery, 
 and the verdict had been as in this case, 
 the King might have had judgment.' In 
 R. v. Kinnersley, 1 Str. 193, at p. 195, R. 
 v. Heme is cited. There the indictment 
 alleged that Heme with A., et inultis aliis, 
 did conspire to accuse a man of an offence ; 
 the grand jury ignored the bill as to A., 
 but found it as to Heme, who was con- 
 victed ; and it was moved in arrest of 
 judgment, that there being an ignoramus 
 as to A., Heme could not be guilty of con- 
 spiring with him ; but the whole court held 
 that it was sufficient, it being found that 
 he, cum multis aliis, did conspire, and that 
 it might have been laid so at first. See 
 also R. v. Scott, 3 Burr. R. 1262. It is 
 quite an error to suppose that the word 
 'other,' as used in indictments, means 
 ' different from.' It is a mere word of form, 
 used like 'further' and 'afterwards.' See 
 R. v. Downing, 1 Den. C. C. 52. If the 
 indictment had contained three counts, the 
 first alleging a conspiracy between Thomp- 
 son and Tillotson, the second between 
 Thompson and Maddock, and the third 
 between Thompson and divers other persons 
 to the jurors unknown, and the facts had 
 been as in this case, the verdict must have 
 been not guilty on the first two counts, and 
 guilty on the third ; and yet each count in 
 this indictment was in point of law exactly 
 the same as such three counts. 
 
 The authorities seem to show, that if 
 several persons are indicted for a riot or a 
 conspiracy, and the jury acquit all except 
 two in riot and one in conspiracy, the latter 
 must also be acquitted. It is very confidently 
 submitted that these authorities rest on a 
 fallacy, viz. that because some are acquitted, 
 vol. i. — 33 
 
 therefore the others could not have been 
 guilty of the offence together with those that 
 are acquitted. The acquittal of A. neces- 
 sarily amounts to no more than that A. was 
 not proved to be guilty. Suppose A. and B. 
 are indicted for a conspiracy, and A. has 
 made a written confession that he did con- 
 spire with B., and B. with him, but the 
 evidence fails as against B., is A. to be ac- 
 quitted 1 Suppose, in such a case, A. had 
 pleaded guilty, is his plea to be set aside 
 because B. for want of evidence is acquitted? 
 This shows that in fact one may be guilt}', 
 though the rest are acquitted, and that the 
 doctrine in question rests on an entire fallacy. 
 Again, it is conceived that a still more fatal 
 objection to the doctrine exists. It is appre- 
 hended that the acquittal of B can in no 
 case be admissible in evidence for A. It is 
 obvious that the conviction of A. would not 
 be evidence against B. And the rule is, that 
 ' no record of a conviction or verdict can be 
 given in evidence, but such whereof the 
 benefit may be mutual.' R. v. The Warden 
 of the Fleet, Holt, 133 ; and see other cases, 
 2 Phill. Evid. c. 1, s. 1. C. S. G. 
 
 (q) R. v. Cooke, 5 B. & C. 538. 7 D. & 
 R. b"73. Littledale, J., said, ' If the other 
 defendant shall hereafter be acquitted, per- 
 haps this judgment may be reversed.' Sed 
 quazre, for such acquittal would not necessa- 
 rily show that the verdict of guilty on the 
 former trial was wrong, as witnesses might be 
 dead or absent who were examined on the 
 former trial, or the one defendant might have 
 been convicted on his own confession, which 
 would not be admissible against the other 
 defendant. C. S. G. 
 
 (r) R. v. Ahearne, 6 Cox, 6. 
 
 (.») R. v. Manning, 12 Q. B. D. 241.
 
 514 Indictment [book ii. 
 
 With respect to the statement of the charge in the indictment it 
 may be observed, that though it is usual to state the conspiracy, and 
 then show that in pursuance of it certain overt acts were done, it is 
 sufficient to state the conspiring alone, (t) 1 And it is not necessary 
 to state the means by which the object was to be effected, as the con- 
 spiracy may be complete before the means to be used are taken into 
 consideration. Therefore an indictment for conspiring by divers false 
 pretences and subtle means and devices to get money from J. S., and 
 cheat him thereof, is not objectionable on the ground that it is too 
 general, or does not sufficiently show the corpus delicti, or specify any 
 overt act. (u) So a count alleging that the defendants ' unlawfully, 
 fraudulently, and deceitfully did combine, conspire, confederate, and 
 agree together by divers false pretences and subtle means and devices 
 to obtain and acquire to themselves from one G. W. F. divers large 
 sums of money of the monies of the said G. W. F., and to cheat and 
 defraud him thereof,' has been held good, (v) So where a count alleged 
 that the defendants unlawfully, falsely, fraudulently, and deceitfully 
 did conspire, combine, confederate, and agree together, by divers false 
 pretences and indirect means, to cheat and defraud the prosecutor of 
 his monies, the Court of Queen's Bench held that this count was good, 
 on the authority of R. v. Gill, (w) which was founded on excellent 
 reason, (x) So where a count alleged that the defendants ' unlawfully, 
 fraudulently, and deceitfully did conspire, combine, confederate, and 
 agree together to cheat and defraud ' the prosecutor ' of his goods and 
 chattels ; ' upon error in the Exchequer Chamber it was held that this 
 case was not distinguishable from R. v. Gill, (y) and that the count 
 was good, (z) But this is only the case where the conspiracy is to 
 commit some offence, and if it be not to commit some offence, the 
 indictment must show some illegal act done in pursuance of the 
 conspiracy, or it is insufficient, (a) 
 
 A count alleged that C. C. died possessed of certain East 
 India stock, and that the defendants conspired, &c, by divers 
 false, fraudulent, and unlawful ways, means, and contrivances, and 
 by false pretences and false swearing, unlawfully, &c, to obtain 
 the means and power to and for S. P of transferring and disposing of 
 the said stock ; and that in pursuance of the said conspiracy the 
 defendants afterwards caused a certain false deposition, purporting 
 to have been made on oath by S. P. as one of the lawful children 
 of the said C. C, wherein S. P. falsely stated that the widow of the 
 said S. P. died without having taken upon her letters of administra- 
 tion of his goods, to be exhibited in the Prerogative Court of Canter- 
 bury ; and did then fraudulently procure letters of administration to 
 
 (/) R. v. Best, 2 Lord Raym. 1167. 1 (w) Supra. 
 
 Salk. 174. 3 Chit. Crim. L. 1143. The (x) R. v. Gompertz, 9 Q. B. 824. 
 
 Poulterers' Case, 9 Rep. 55. R. v. Kim- (y) Supra. 
 
 berty, 1 Lev. 62. R. v. Sterling, 1 Lev. 125. (a) SvdsertT v R., 11 Q. B. 245. 
 
 {u) R. v. Gill, 2 B. & A. 204. (a) R. v. Seward, 1 A. & E. 706. 
 
 (r) R, v. Kenrick, 5 Q. B. 49. 
 
 American Note. 
 
 1 The same law prevails in America, but and prove an overt act. Bishop, i. s. 432, 
 in New York and some of the States there ii. §§ 192, 200. 
 are statutes which make it necessary to allege
 
 chap, xxiv.] Of Conspiracy. 515 
 
 be issued of the goods of C. C. to S. P., as one of the lawful children 
 of C. 0. After alleging two other overt acts of a similar kind, the 
 count alleged that the defendants presented such letters of administra- 
 tion to the East India Company, and did, by such false ways, &c, false 
 pretences and false swearing, fraudulently obtain the means and power 
 to and for S. P. of transferring and disposing of the stock ; and that 
 S. P. did transfer and dispose of the said stock, &c, with intent to de- 
 fraud the widow of C. C. It was objected, 1st, that the conspiracy as 
 alleged did not amount to any offence, as no legal meaning could be 
 ascribed to obtaining ' the means and power ' of doing an act. 2nd, 
 that the person intended to be defrauded ought to have been shown 
 with more certainty. 3rd, that it ought to have been stated to whom 
 the stock belonged. But the court held that the statement of the 
 means used for effecting the object of the conspiracy was so inter- 
 woven with the charge of conspiracy as to show on the face of the 
 count an unlawful conspiracy. But if that were not so, the overt acts 
 showed an indictable misdemeanor, (b) 
 
 It need not be averred in the indictment that the prosecutor was 
 innocent of the crime imputed to him by the conspirators, (c) And in 
 a case of a conspiracy to charge a person with being the father of a 
 bastard child, it was holden not to be necessary to aver that the prose- 
 cutor was not the father, especially when the words of the indictment 
 were ' did falsely conspire falsely to charge,' &c. ; the principle being 
 that innocence must be intended till the contrary appears, (d) And it 
 should seem that even without those words the indictment would be 
 sufficient, and need not state that the charge was false, nor that the 
 child was likely to become chargeable, &c. (e) And an indictment for 
 a conspiracy was holden to be good, although it was not alleged in the 
 charge itself that the defendants conspired falsely to indict the prose- 
 cutor, and although it did not appear of what particular crime or 
 offence they conspired to indict him, but only in general that the de- 
 fendants did wickedly and maliciously conspire to indict and prose- 
 cute the prosecutor for a crime or offence liable to be capitally punished 
 by the laws of this kingdom. (/) The conspiracy is the gist of the 
 charge alleged in such an indictment. 
 
 (b) Wright v. R. 14 Q. B. 148. This (c) 2 Lord Raym. 1167. 
 
 judgment was affirmed on error, ibid. 180, (/) R. v. Spragg, 2 Burr. 993. In R. v. 
 
 on the authority of Sydserff v. R. supra. King, 7 Q. B. 782, Tindal, C. J., said of 
 
 The indictment contained several other this case, ' The point decided in that case 
 
 counts, varying the intent to defraud, and appears to have been merely this, that, in an 
 
 omitting some of the overt acts. The seventh indictment for a conspiracy, though the 
 
 count alleged that H. M. C. was entitled to conspiracy be insufficiently charged, yet if 
 
 the stock, and that the defendants conspired the rest of the indictment contains a good 
 
 by false, &c, and unlawful ways and means, charge of a misdemeanor, the indictment is 
 
 and by false pretences, unlawfully to obtain good. Lord Mansfield distinguishes between 
 
 the means and power to and for S. P. of the allegation of the unexecuted conspiracy 
 
 transferring and disposing of the said stock, to prefer an indictment, as to the sufficiency 
 
 The eleventh count stated that the defend- of which he gave no opinion, and that of the 
 
 ants unlawfully conspired by false, &c, and actual preferring of the indictment mali- 
 
 unlawful pretences, &c, to obtain and get ciously and without probable cause, which he 
 
 into their possession of and from one S. B. calls a completed conspiracy actually carried 
 
 divers large sums of money with intent to into execution ; and this he holds to be 
 
 defraud S. B. The Court of Queen's Bench clearly sufficient ; and no doubt it was so ; 
 
 arrested the judgment on these counts. for, rejecting the averment of the unexecuted 
 
 (c) R. v. Kinnersley, 1 Str. 193. conspiracy, the indictment undoubtedly 
 ('/) R. v. Best, 1 Salk. 174. 2 Lord Raym. contained a complete description of a com- 
 
 1167. mondaw misdemeanor. '
 
 516 Indictment. [book ii. 
 
 Where the defendants were indicted for conspiring to pervert the 
 course of justice by producing in evidence a false certificate of a 
 justice of peace, it was holden not to be necessary to set forth in 
 the indictment that the defendants knew at the time of the conspir- 
 acy that the contents of the certificate were false, on the ground that if 
 persons with intent to obstruct the course of justice conspire to state 
 a fact at all events as true, which they do not know to be true, it is 
 criminal ; and that the defendants were bound to have known that the 
 fact was true which they agreed to certify as such, (g) 
 
 Where the act is in itself illegal, it is not necessary to state the 
 means by which the conspiracy was effected. Thus where the indict- 
 ment charged that the defendants conspired together by indirect 
 means to prevent one H. B. from exercising the trade of a tailor, and 
 it was contended that it should have stated the fact on which the 
 conspiracy was founded, — the means used for the purpose ; Lord 
 Mansfield, C. J., said, ' The conspiracy is stated and its object ; it is 
 not necessary that any means should be stated ; ' and Buller, J., said, 
 ' If there be any objection it is that the indictment states too much ; 
 it would have been good certainly if it had not added " by indirect 
 means," and that will not make it bad.' (]i~) And where the indict- 
 ment charged that the defendants conspired, by divers false pretences 
 and subtle means and devices, to obtain from A. divers large sums of 
 money, and to cheat and defraud him thereof ; it was holden that the 
 gist of the offence being the conspiracy, it was quite sufficient only to 
 state that fact, and its object, and not necessary to set out the specific 
 pretences. Bayley, J., said, that when parties had once agreed to 
 cheat a particular person of his monies, although they might not then 
 have fixed on any means for that purpose, the offence of conspiracy 
 was complete.' (i) But where the act only becomes illegal from the 
 means used to effect it, the illegality of it should be explained by 
 proper statements, 1 as in the cases which have been cited of conspira- 
 cies to marry paupers, (j) 
 
 Where an indictment charged the defendants with conspiring ' to 
 defraud J. W. of divers goods, and in pursuance of that conspiracy 
 defrauding him of divers goods, to wit, of the value of 100/.;' the 
 Court of King's Bench refused to quash the indictment on motion ; 
 for although if this had been an indictment for stealing the prose- 
 cutor's goods, it would have been bad for uncertainty, yet in this case 
 
 (g) R. v. Mawbey, 6 T. R. 619. Ante, (i) R. v. Gill, 2 B. & A. 204. In R. v. 
 
 p. 498. Lawrence, J., said that it was not Parker, 3 Q. B. 292, 11 Law J. M. C. 102, 
 
 unlike the case of perjury where a man swears Williams, J., said, 'It has been always 
 
 to a particular fact without knowing at the thought that in R. v. Gill the extreme of 
 
 time whether the fact be true or false ; which laxity was allowed.' 
 
 is as much perjury as if he knew the fact to (;') Ante, p. 502. See also R. v. Seward, 
 
 be false, and equally indictable. Ante, p. 294. ante, p. 503. 
 
 (h) Eccles's case in note (d) to R. v. 
 Turner, 13 East, 230. Ante, p. 508. 
 
 American Note. 
 
 1 A curious case is reported in America directors to certain of the conspirators to 
 
 where there was a conspiracy to effect what enable them to vote for directors who would 
 
 in itself would be lawful by unlawful means, employ the conspirators in the compauy's 
 
 It was arranged that policies of insurance service. This was held to be an indictable 
 
 should be issued in due form by innocent conspiracy. S. v. Burnham, 15 N. H. 396.
 
 chap, xxiv.] Of Conspiracy. 517 
 
 the gist of the indictment was the conspiracy, and it might be that 
 there was so much uncertainty in the transaction, which was the sub- 
 ject of the indictment, that the allegation could not be made with 
 greater certainty, as the conspiracy might be to defraud the prosecu- 
 tor, not of any particular goods, but of any goods the prisoner could 
 get hold of. (k) 
 
 And so where an indictment stated that the defendants conspired 
 by false rumours to raise the funds, with 'intention thereby to injure 
 and aggrieve all the subjects of the King who should on the 21st of 
 February purchase or buy ' any shares in the funds ; and it was ob- 
 jected that the persons to be affected by the conspiracy were not par- 
 ticularised, as they ought to be, it was held that the indictment was 
 good ; for it followed from the nature of the charge that the persons 
 could not be named, because this was a charge of conspiracy on a 
 previous day to raise the funds on a future day, so that it was uncer- 
 tain who would be the purchasers ; and the offence being to raise 
 the funds on a future day, its object was to injure all those who 
 should become purchasers on that day, and not some individuals in 
 particular. (I) 
 
 So where the first count of an indictment stated that the defendants 
 conspired to defraud ' divers of her Majesty's liege subjects, who should 
 bargain with the defendants for the sale of goods and merchandise of 
 the said subjects ' of great value, without making payment or other 
 remuneration or satisfaction for the same, with intent to acquire to 
 the said defendants divers sums of money and other profit and emolu- 
 ment; it was held that it was no valid objection that the count did 
 not state what particular creditors the defendants meant to defraud ; 
 for if the offence went no further than the conspiracy, it could not be 
 known what particular persons fell into the snare. But it was further 
 held that the count was defective in not stating with sufficient par- 
 ticularity what the defendants conspired to do. For obtaining goods 
 without making payment was not necessarily a fraud, as the words 
 of the indictment might apply to the obtaining goods to sell on 
 commission, (m) 
 
 The second count in the same indictment alleged that the defend- 
 ants being ' indebted to divers persons in large sums of money,' con- 
 spired to defraud the said creditors of the defendants of payment of 
 their said debts, and in pursuance of the said conspiracy unlawfully 
 did execute a certain false and fraudulent deed of bargain and sale 
 and assignment of certain fixtures, stock in trade, and goodwill, of 
 great value, belonging to the said defendants, from two of themselves 
 to the third, for divers false and fraudulent considerations, with in- 
 tent thereby to procure to the said defendants divers sums of money 
 and other emoluments, and it was held that this count was bad for 
 
 (k) Anonymous, 1 Chitty Rep. 698. In (/) R. v. De Berenger, 3 M. & S. 68, 
 
 R. v. Parker, supra, it was said that the ante, p. 500. 
 
 objection in this case was that the particular (m) R. v. Peck, 9 A. & E. 686. 1 P. & 
 
 goods were not specified, and probably only D. 508. 1 
 so much as showed that was stated in the 
 report. 
 
 American Note. 
 1 See C. v. Eastman, 1 Cush. 189, 48 Am. D. 596.
 
 518 Indictment. [book ii. 
 
 the same reasons as the first ; it did not state in what respect the deed 
 was false and fraudulent, and therefore the court had only the prose- 
 cutor's general opinion upon this point, not the facts on which it 
 was founded, (a) 
 
 Where an indictment alleged that an issue in an action between H. 
 B. and G. C. was tried, and that the plaintiff recovered a verdict for the 
 sum of 17/., and that the judge certified that execution ought to issue 
 forthwith, and that the defendants ' did conspire falsely and fraudu- 
 lently to cheat and defraud the said H. B. of the fruits and advantages 
 of the said verdict and certificate ; ' Lord Denman, C. J., held that the 
 indictment was bad, as the allegation was too general, and did not 
 convey any specific idea which the mind could lay hold of, to judge 
 whether any unlawful act had been done or attempted. The terms 
 used did not import in what manner the plaintiff was to be deprived 
 of the fruits and advantages of his verdict, and it was not even alleged 
 that the verdict would lead to any fruits and advantages, (o) 
 
 So where a count alleged that the defendants conspired ' by divers 
 false, artful, and subtle stratagems and contrivances, as much as in 
 them lay, to injure, oppress, aggrieve, and impoverish E. W. and T. W., 
 and to cheat and defraud them of their monies ; ' the Court of King's 
 Bench arrested the judgment on the ground that this count was in 
 too general a form to be supported, (p) So where a count charged 
 that the defendants did ' conspire to cheat and defraud the just and 
 lawful creditors ' of F. ; Lord Tenterden, C. J., thought that the count 
 was much too general, as it did not state what was intended to be 
 done, or the persons to be defrauded, but refused to stop the case on 
 this point, as, if an acquittal were directed, and the count should turn 
 out to be good, the defendants might plead autrefois acquit, (q) 
 
 An indictment for a conspiracy to obtain goods, which states that 
 the goods were obtained, must state whose property the goods were, or 
 it will be insufficient. The first count alleged that the defendants, 
 intending to cheat and defraud divers of the liege subjects of the 
 Queen of their goods, &c, unlawfully conspired by divers false pre- 
 tences to obtain from divers of the liege subjects, &c, then carrying 
 on business in the city of London, to wit, T. Tarn and D. Law, ware- 
 housemen and copartners, and E. Fennell and R. Fennell, cotton yarn 
 manufacturers and copartners, &c, divers goods and merchandise of 
 great value, to wit, &c, and to cheat and defraud the said liege sub- 
 jects of the said goods and merchandise. The count then set out 
 several overt acts as to the obtaining goods from the parties above 
 named respectively, and concluded by averring that the defendants 
 did bv the means aforesaid obtain from the said T. Tarn and D. Law. 
 
 (n) R. v Peck, supra. upon the point decided by it, was referred 
 
 (o) R. v. Richardson, 1 M. & Rob. 402. to in that judgment ; and it appears dis- 
 
 (p) R. v. Biers, 1 A. & E. 327. In Syd- tinctly, from R. v. Gompertz, 9 Q. B. 824, 
 
 serif v. R. , 11 Q. B. 245, ante, p. 514, that R. v. Biers has never been considered 
 
 Wilde, C. J., in delivering the judgment of by the Queen's Bench as overruling R. v. 
 
 the Court of Exchequer Chamber, observed, Gill.' It may therefore be questioned, 
 
 ' Upon referring to the judgment in R. v. whether the Court of Exchequer Chamber 
 
 Biers, there seems strong reason to doubt did not think the count in R. v. Biers, 
 
 whether it did not go wholly on the one ob- which is set out in the text, to be good. 
 
 jection to the special counts. Neither R. v. (q) R. v. Fowle, 4 C. & P. 592, The 
 
 Gill, nor any other authority at all bearing defendants were acquitted.
 
 chap, xxiv.] Of Conspiracy. 519 
 
 and E. Fennell and E. Fennell, &c, the goods and merchandise 
 aforesaid, and did cheat and defraud them thereof. The second 
 count was similar, but omitted to state the overt acts. The third 
 count stated the conspiracy to be to cause it to be believed that one 
 of the defendants, who was then an uncertificated bankrupt, was not 
 B. P., but J. P., and that he carried on an extensive shipping business, 
 and was a man of large property, and had a large capital in the busi- 
 ness, and by means of the said belief to obtain from divers liege sub- 
 jects (not naming them) divers goods, wares, and merchandise, and to 
 cheat and defraud the said liege subjects of the said goods, &c. The 
 fourth count charged that the defendants unlawfully combined by 
 divers false pretences to obtain from divers liege subjects (not naming 
 them) divers other goods and merchandise of great value, and to cheat 
 and defraud the said liege subjects of the said goods, &c. The defend- 
 ants having been convicted, a rule was obtained to arrest the judg- 
 ment for the insufficiency of the indictment in not stating that the 
 goods, &c, which the defendants were charged with conspiring to 
 obtain, were the property of any person, it being consistent with the 
 statement that they were the goods, &c, of the defendants themselves , 
 and the Court of Queen's Bench held that the indictment was bad for 
 not stating to whom the goods belonged. That where the object charged 
 was a conspiracy to obtain from certain persons named divers goods, 
 and to cheat and defraud them of the same, and they were obtained, 
 and the parties defrauded, no precedent was to be found to show that 
 an indictment was good which omitted to state whose the goods were. 
 The first count, therefore, was imperfect, and the objection applied 
 more strongly to the fourth count, where the language was still more 
 general. The conspiracy charged was to obtain divers goods and to 
 cheat and defraud certain persons named, not with intent to cheat 
 and defraud them of the same, though perhaps that would have made 
 no difference, and as there was no statement to whom the goods 
 belonged, the charge did not, of necessity, import any offence, as it 
 was consistent with an attempt by the defendants to obtain by some 
 means their own goods unlawfully detained from them ; and to hold 
 that the use of the words ' to cheat and defraud ' necessarily implied 
 that the goods belonged to the parties who were stated to be defrauded, 
 would be letting in a generality, which was not shown ever to be 
 allowed, (r) 
 
 (r) R. v. Parker, 3 Q. B. 292, 11 Law and to whom it belonged. The reason of 
 
 J. N. S. M. C. 102. See R. v. Bullock, such a distinction is that in the one case it 
 
 Dears. C. C. 653. S. P. Although there is impracticable to state with minuteness 
 
 appears at first sight to be some little dis- what never was carried beyond the intention, 
 
 crepancy in the cases upon this point, whereas in the other case what was actually 
 
 perhaps they are not irreconcilable. The effected may easily be stated. The case may 
 
 correct distinction to be drawn from them be compared to the cases of burglary with 
 
 appears to be this, that where there has been intent to steal, and burglary accompanied 
 
 merely a conspiracy for a particular purpose by an actual stealing ; in the former it is 
 
 (e. g. to raise the funds), and such conspiracy sufficient to state that the prisoner broke and 
 
 has not been carried into execution, an in- entered the house with intent to steal the 
 
 dictment in general terms will be sufficient ; goods (without describing them) of one A. 
 
 but where there has not only been a eonspi- B. ; and in the latter the goods stolen must 
 
 racy, but such conspiracy has been carried be particularised. So where a conspiracy has 
 
 into effect, there the indictment ought to been detected before it is carried into execu- 
 
 specify precisely what has been effected, as tion so far as to ascertain the parties intended 
 
 the parties injured, the property obtained, to be injured by it, an indictment would be
 
 520 Indictment. [book n. 
 
 A count alleged that the defendants did unlawfully combine, con- 
 spire, confederate, and agree together to cause and procure certain 
 goods, wares, and merchandises, which had been and were theretofore 
 imported into the port of London from parts beyond the seas, and in 
 respect whereof certain duties of customs were due and payable to 
 the Queen, to be taken away from the said port and delivered to the 
 respective owners thereof without payment to the Queen of a great 
 part of the duties of customs so due and payable thereon as afore- 
 said, with intent to defraud the Queen in her revenue of the customs ; 
 it was objected in arrest of judgment that the count was insufficient, 
 because no description of the goods was given, by which the Court 
 could judge, whether the goods were liable to duty. But the Court 
 of Queen's Bench held that it was not necessary to specify the goods. 
 It was matter of evidence what the goods were to which the con- 
 spiracy related ; the parties might have conspired without knowing 
 what they were ; they might have laid their heads together to cheat 
 the Queen of whatever customable goods they could pass, (s) 
 
 A count alleged that W. H. King, E. A. Birch, and A. D. Phillips, 
 did ' unlawfully combine, conspire, confederate and agree together to 
 cheat and defraud certain liege subjects of our Lady the Queen, being 
 tradesmen, of divers large quantities of their goods and chattels :' and 
 that E. A. Birch, in pursuance of the said conspiracy, did fraudulently 
 order and obtain upon credit from W. A. W. and C. W. divers goods 
 and chattels belonging to the said W. A. W. and C. W. ; from F. B. 
 and W. J., divers goods and chattels belonging to the said F. B. and 
 W. J. ; and from divers other tradesmen whose names are to the jurors 
 unknown, divers other goods and chattels belonging to the said last 
 mentioned persons ; and that E. A. Birch, ' in further pursuance of the 
 said conspiracy,' and in order that the said goods might be taken in 
 execution as hereinafter mentioned, did order the said goods to be 
 delivered at her house ; and that the said goods were so delivered, 
 and no payment made for the said goods by any of the defendants at 
 any time ; and that, ' in further pursuance of the said conspiracy,' 
 the said E. A. Birch did procure the said goods to remain in her house 
 until they were taken in execution as hereinafter mentioned, and that 
 the defendants, ' in further pursuance of the said conspiracy,' did 
 
 good without naming such parties. R. v. from another, and thereby to cheat and 
 De Berenger, ante, p. 500. But where the defraud him, under such circumstances as 
 conspiracy had proceeded so far as to fix the did not amount to larceny, should not be 
 parties intended to be injured, such parties indictable for a conspiracy. The better 
 should be expressly named, and if the object ground to rest the decision upon would seem 
 was to defraud them of their goods, or their to be that the indictment did not adopt 
 goods had been actually obtained thereby, such a degree of particularity as the facts 
 the. indictment should state in the one case enabled the prosecutor to do, and the rules 
 the intent to defraud them of their goods, of criminal pleading require to be adopted 
 and in the other that they were defrauded of where it is practicable. C. S. G. 
 their goods. This position has been fully (s) R. v. Blake, 6 Q. B. 126. This de- 
 borne out by R. v. King, infra. It may, cision was before R. v. King, post, and all 
 perhaps, admit of some doubt whether the the reasoning in the judgment of the Exche- 
 possibility of the goods belonging to the de- quer Chamber tends to show that this 
 fendants in the principal case necessarily deeision was wrong, as the goods had been 
 rendered the indictment bad ; for as a party imported and clearly ascertained. The terms 
 may be guilty of larceny in stealing his own ' a great part of the duties of customs ' seem 
 goods, there seems no reason why parties very objectionable, 
 who conspired to obtain their own goods
 
 chap, xxiv.] Of Conspiracy. 521 
 
 falsely and fraudulently pretend that certain debts were due from 
 the said E. A. B. to the said W. H. K. and A. D. P. respect- 
 ively, and that the said W. H. K. and A. D. P., ' in further pur- 
 suance of the said conspiracy, and in order to obtain payment of 
 such false and fictitious debts,' did commence by collusion with 
 the said E. A. Birch separate actions against the said E. A. Birch. 
 And that afterwards, 'in further pursuance of the said conspiracy,' 
 jndgments were collusively signed by the said W. A. K. and A. 
 D. P. in each of the said actions for want of a plea. And that 
 afterwards, ' in further pursuance of the said conspiracy, writs of fieri 
 facias were collusively sued out upon the said judgments ; by virtue 
 of which writs the said goods were, before the expiration of the said 
 respective times of credit, taken in execution and sold in due course 
 of law to satisfy the fictitious debts falsely and fraudulently alleged 
 to be due from the said E. A. Birch. And so the jurors aforesaid 
 find that the defendants, in manner and by the means aforesaid, unlaw- 
 fully did cheat and defraud the said W. A. W. and C. W., F. B. and 
 W. J., &c. of their said goods.' The defendants were convicted, and 
 the Court of Queen's Bench held the count good ; but the judgment 
 was reversed in the Exchequer Chamber, and Tindal, C. J., in deliver- 
 ing the judgment of the Court, said, ' The charge is that the defend- 
 ants conspired to cheat and defraud divers liege subjects, being 
 tradesmen, of their goods, &c. ; and the objection is that these persons 
 should have been designated by their Christian and surnames, or an 
 excuse given, such as that their names are to the jurors unknown ; 
 because this allegation imports that the intention of the conspirators 
 was to cheat certain definite individuals, who must always be described 
 by name, or a reason given why they are not ; and if the conspiracy 
 was to cheat indefinite individuals, as for instance those whom they 
 should afterwards deal with, or afterwards fix upon, it ought to have 
 been described in appropriate terms, showing that the objects of the 
 conspiracy were, at the time of making it, unascertained, as was in 
 fact done in the case of R. v. Be Berenger, (f) and R. v. Peck ; (it) and 
 it was argued that if, on the trial of this indictment, it had appeared 
 that the intention was not to cheat certain definite individuals, but 
 such as the conspirators should afterwards trade with or select, they 
 would have been entitled to an acquittal ; and we all agree in this 
 view of the case, and think that the reasons assigned against the 
 validity of this part of the indictment are correct. But then it was 
 urged on the part of the crown that this defect in the allegation of 
 the conspiracy was cured by referring to the whole of the indictment, 
 the part stating the overt acts as well as that stating the conspiracy ; 
 and R. v. Spragg, (v) was cited as an authority that the whole ought 
 to be read together. But if we examine the allegations in this indict- 
 ment, there is no sufficient description of any act done after the con- 
 spiracy which amounts to a misdemeanor at common law. None of 
 the overt acts are shown by proper averments to be indictable. The 
 obtaining goods, for instance, from certain named individuals upon 
 credit, without any averment of the use of false tokens, is not an 
 indictable misdemeanor ; and if it is said that because it is averred to 
 
 (t) 3 M. & S. 67, ante, p. 500. (v) 2 Burr. 993. See ante,?. 515, note (t), 
 
 (it) 9 A. & E. 686, ante, p. 517. for the remarks on this case.
 
 522 Indictment. [book il 
 
 have been done in pursuance of the conspiracy before mentioned, it 
 must be taken to be equivalent to an averment that the conspiracy 
 was to cheat the named individuals of their goods, the answer is, first, 
 that it does not necessarily follow, because the goods were obtained in 
 pursuance of the conspiracy to cheat some persons, that the conspiracy 
 was to cheat the persons from whom the goods were obtained ; they 
 might have been obtained from A. in the execution of an ulterior pur- 
 pose to cheat B. of his goods. And secondly, if the averment is to be 
 taken to be equivalent to one that the goods were obtained from the 
 named individuals in pursuance of an illegal conspiracy to cheat and 
 defraud those named individuals of their goods, it would still lie 
 defective, as not containing a direct and positive averment that the 
 defendants did conspire to cheat and defraud those persons, which an 
 indictment for a conspiracy, where the conspiracy is itself the crime, 
 ought certainly to contain. The other allegations of what are termed 
 overt acts are open to the same objection. In none is there complete 
 description of a common-law misdemeanor independently of the con- 
 spiracy ; and the allegation of the conspiracy is insufficient, and 
 not direct and positive. For these reasons the judgment must be 
 reversed.' (w) 
 
 Where a count charged that Lewis carried on the business of a 
 dyer, and had divers vats and quantities of dye for the carrying on 
 the business, and that the defendants were employed by Lewis as his 
 servants in the management of his business, and that it was their 
 duty as such servants to employ the vats and dye of Lewis for his 
 benefit and for dyeing such materials as might belong to themselves 
 or be intrusted to them by Lewis for those purposes, and for no other 
 purposes and on no other materials; and that the defendants unlaw- 
 fully conspired, fraudulently and without the consent of Lewis, to 
 employ the vats and dye in dyeing materials not belonging to them- 
 selves and not intrusted to them by Lewis, and to obtain thereby to 
 themselves large profits, and to deprive Lewis of the use and benefit 
 of the said vats and dye ; and that the defendants, in pursuance of the 
 said conspiracy, wilfully and without the consent of Lewis, received 
 into their possession divers large quantities of materials, and wilfully 
 and without the consent of Lewis, at his expense and with his said 
 vats and dye, dyed the same materials for their own profit and benefit ; 
 it was objected that the count did not show that the goods which the 
 defendants dyed were not their own, and that it appeared by the 
 record that they had permission to dye their own goods ; but the 
 Court of Queen's Bench held that the count was good ; it was 
 clear that the essential part of the count was the charge of a con- 
 spiracy ; so that if the evidence proved the conspiracy and did not 
 prove the overt acts alleged, viz. that the conspiracy was carried into 
 effect, the count would have been sufficiently proved, (x) 
 
 (w) E. v. King, 7 Q. B. 782. In the but the court held that this was not neces- 
 
 argument in the Court of Queen's Bench in sary, and this point does not appear to have 
 
 this case it was also objected that the con- been raised in the Exchequer Chamber.' 1 
 spiracy ought to have been laid to defraud (x) R. v. Button, 11 Q. B. 929. There 
 
 divers tradesmen of their goods ' respectively,' was another count similar to the above, 
 
 American Note. 
 1 As to the purchase of goods by two for them, see C. v. Eastman, 1 Cush. 189 ; 
 persons without any expectation of paying 48 Am. D. 596.
 
 chap, xxiv.] Of Conspiracy. 523 
 
 The first count alleged that the defendants, intending to create dis- 
 content and disaffection amongst the subjects of the Queen, and to 
 excite the said subjects to hatred of the government and constitution, 
 &c, unlawfully and seditiously did conspire, &c, to create discontent 
 and disaffection amongst the subjects of the Queen, and to excite such 
 subjects to hatred and contempt of the government and constitution 
 and to unlawful and seditious opposition to the government and con- 
 stitution, and to stir up jealousies and ill-will between different classes 
 of her Majesty's subjects, and especially to promote among her Ma- 
 jesty's subjects in Ireland feelings of ill-will and hostility towards and 
 against her Majesty's subjects in the other parts of the United King- 
 dom, and especially in that part called England ; and further, to excite 
 discontent and disaffection amongst divers of her Majesty's subjects 
 serving in the army , and further, to cause and procure, &c, divers 
 subjects unlawfully and seditiously to meet and assemble together in 
 large numbers, at different places in Ireland, for the unlawful and 
 seditious purpose of obtaining, by means of the intimidation to be 
 thereby caused, and by means of the exhibition of great physical force 
 at such assemblies and meetings, changes and alterations in the govern- 
 ment, laws, and constitution ; and further, to bring into hatred and 
 disrepute the courts by law established in Ireland for the administra- 
 tion of justice, and to diminish the confidence of the said subjects in 
 Ireland in the administration of the law therein, with the intent to 
 induce the subjects to withdraw the adjudication of their differences 
 from the cognizance of the said courts, and to submit the same to the 
 determination of other tribunals to be constituted for that purpose. 
 The count then alleged various overt acts done in order to excite dis- 
 content with, hatred of, and disaffection to the government, laws, and 
 constitution. The second count was exactly like the first, but omitted 
 the overt acts. The third count alleged that the defendants, intending 
 to create discontent and disaffection amongst the subjects of the Queen, 
 and to excite the said subjects to hatred and contempt of the govern- 
 ment and constitution, &c, unlawfully and seditiously did conspire, &c, 
 to raise and create discontent and disaffection amongst the subjects of 
 the Queen, and to excite such subjects to hatred and contempt of the 
 government and constitution, and to unlawful and seditious opposition 
 to the said government and constitution, and to stir up hatred, jealousies, 
 and ill-will between different classes of the said subjects, and especially 
 to promote amongst the said subjects in Ireland feelings of ill-will and 
 hostility against the said subjects in other parts of the United King- 
 dom, and especially in that part called England ; and further, to excite 
 discontent and disaffection amongst divers subjects serving in her 
 Majesty's army ; and further, to cause and procure, &c, divers subjects 
 
 which was objected to on the ground that it also a question as to the conspiracy having 
 
 did not allege any duty in the defendants merged in the felony decided in this case. 1 
 
 not to employ the dye for their own profit; But as the 14 & 15 Vict. c. 100, s. 1"2, 
 
 but the court held it good, as the allegation has got rid of all such questions for the 
 
 of the conspiracy was sufficient. There was future, it has been omitted. 
 
 American Note. 
 
 1 For the American law on the subject and a discussion of the case of R. v. Button 
 see Bishop, i. ss. 812, 814.
 
 524 Indictment. [book ii. 
 
 to meet and assemble together in large numbers at different places in 
 Ireland, for the unlawful and seditious purpose of obtaining, by means 
 of the intimidation to be thereby caused, and by means of the exhibi- 
 tion of great physical force at such assemblies and meetings, changes 
 in the government, laws, and constitution ; and further, to bring into 
 hatred and disrepute the courts in Ireland for the administration of 
 justice, &c. The fourth count was the same as the third, omitting the 
 charges as to creating discontent in the army, and the diminishing the 
 confidence in the courts of law. The fifth count alleged that the de- 
 fendants, intending to cause and create discontent and disaffection 
 amongst the liege subjects of the Queen, and to excite the said sub- 
 jects to hatred and contempt of the government and constitution, &c, 
 unlawfully and seditiously did conspire, &c, to raise and create discon- 
 tent and disaffection amongst the liege subjects of the Queen, and to 
 excite the said subjects to hatred and contempt of the government 
 and constitution, and to unlawful and seditious opposition to the 
 government and constitution, and also to stir up jealousies, hatred, and 
 ill-will between different classes of the said subjects, and especially to 
 promote amongst the said subjects in Ireland feelings of ill-will and 
 hostility against the subjects in the other parts of the United Kingdom, 
 and especially in England. The sixth count alleged that the defend- 
 ants unlawfully and seditiously intending, by means of intimidation 
 and the demonstration of great physical force, to procure and effect 
 changes to be made in the government, laws, and constitution, unlaw- 
 fully and seditiously did conspire, &c, to cause, and procure, &c. divers 
 subjects of the Queen to meet and assemble together in large numbers, 
 at various times and at different places in Ireland, for the unlawful 
 and seditious purpose of obtaining, by means of intimidation to be 
 thereby caused, and by means of the exhibition and demonstration of 
 great physical force at such assemblies and meetings, changes in the 
 government, laws, and constitution, &c. The seventh count was like 
 
 © 7 7 ' 
 
 the sixth, with the addition, ' and especially, by the means aforesaid, 
 to bring about and accomplish a dissolution of the legislative union 
 now subsisting between Great Britain and Ireland.' The eighth count 
 charged a conspiracy to bring the tribunals of justice into contempt, 
 and to cause the subjects to withdraw their differences from the said 
 tribunals, and to submit the same to other tribunals. The ninth was 
 similar to the eighth, but substituted for withdrawing their differences, 
 &c, ' to assume and usurp the prerogative of the Crown in the estab- 
 lishment of courts for the administration of the law.' The tenth count 
 charged a conspiracy to bring into disrepute the tribunals for the ad- 
 ministration of justice. And the eleventh count alleged that the 
 defendants, intending by means of intimidation and demonstration of 
 physical force, &c, by causing large numbers of persons to meet and 
 assemble in Ireland, and by means of seditious and inflammatory 
 speeches to be delivered to the said persons, and by means of 
 publishing divers unlawful and seditious writings, to intimidate 
 the Lords Spiritual and Temporal and Commons of the Parlia- 
 ment of the United Kingdom, and thereby to effect changes in 
 the laws and constitution, unlawfully and seditiously did conspire, 
 &c, to cause large numbers of persons to meet together in divers 
 places and at divers times in Ireland, and by means of seditious speeches
 
 chap, xxiv.] Of Conspiracy. 525 
 
 to be made at the said places and times, and by means of publishing 
 to the subjects of the Queen unlawful and seditious writings, &c, to 
 intimidate the Lords Spiritual and Temporal and the Commons of 
 the Parliament of the United Kingdom, and thereby to effect and 
 brinf about changes and alterations in the laws and constitution. 
 Upon a writ of error in the House of Lords, the following question 
 was put to the judges : — 'Are all or any, and if any, which, of the 
 counts in the indictment bad in law ? so that if such count or counts 
 stood alone in the indictment, no judgment against the defendants 
 could properly be entered upon them.' And Tindal, C. J., thus de- 
 livered the answer of the judges: — 'My Lords, the answer to the 
 question will depend upon the consideration, whether all the counts 
 of the indictment are framed with that proper and convenient cer- 
 tainty, with respect to the substance of the charge of conspiracy, which 
 the law requires ; for, undoubtedly, if any of such counts are framed 
 in so loose, uncertain, or inapt a manner, as that the defendants might 
 have availed themselves of the insufficiency of the indictment upon a 
 demurrer, there is nothing to prevent them from having the same 
 advantage of the objection upon a writ of error. The crime of con- 
 spiracy is complete if two, or more than two, should agree to do an 
 illegal thing ; that is, to effect something in itself unlawful, or to effect, 
 by unlawful means, something which in itself may be indifferent, or 
 even lawful. That it was an offence known to the common law, and 
 not first created by the 33 Edw. 1, st. 2, is manifest. That statute 
 speaks of conspiracy as a term at that time well known to the law, 
 and professes only to be 'a definition of conspirators.' It has accord- 
 ingly always been held to be the law, that the gist of the offence of 
 conspiracy is the bare engagement and association to break the law, 
 whether any act be done in pursuance thereof by the conspirators or 
 not. (y) No serious objection appears to have been made against the 
 sufficiency of any of the counts prior to the sixth. Indeed there can 
 be no question but that the charges contained in the first five counts 
 do amount, in each, to the legal offence of conspiracy, and are suffi- 
 ciently described therein. There can be no doubt but that the agreeing 
 of divers persons together to raise discontent and disaffection amongst 
 the liege subjects of the Queen, to stir up jealousies, hatred, and ill-will 
 between different classes of her Majesty's subjects, and especially to 
 promote amongst her Majesty's subjects in Ireland feelings of ill-will 
 and hostility towards her Majesty's subjects in other parts of the 
 United Kingdom, and especially in England — which charges are 
 found in each of the first five counts — do form a distinct and definite 
 charge in each, against the several defendants, of an agreement between 
 them to do an illegal act ; and it therefore becomes unnecessary to 
 consider the other additional objects and purposes alleged in some of 
 these counts to have been comprised within the scope of the agreement 
 of the several defendants. With respect, however, to the sixth and 
 seventh counts, we all concur in opinion that they do not state the 
 illegal purpose and design of the agreement entered into between 
 the defendants with such proper and sufficient certainty as to lead 
 to the necessary conclusion that it was an agreement to do an act in 
 
 (y) R. v. Best, 2 Lord Raym. 167, and R. v. Edwards, 8 Mod. R. 320, were here 
 cited.
 
 526 Indictment. [book ii. 
 
 violation of the law. Each of those two counts does in substance 
 state the agreement of defendants to have been ' to cause and procure 
 divers subjects to meet together in large numbers, for the unlawful 
 and seditious purpose of obtaining, by means of the intimidation to be 
 thereby caused, and by means of the exhibition and demonstration of 
 great physical force at such meetings, changes in the government, 
 laws, and constitution of the realm.' Now, though it may be inferred 
 from this statement, that the object of the defendants was probably 
 illegal, yet it does not appear to us to be so alleged with sufficient cer- 
 tainty. The word ' intimidation ' is not a technical word ; it is not 
 vocahulum artis, having a necessary meaning in a bad sense ; it is a 
 word in common use, employed on this occasion in its popular sense ; 
 and in order to give it any force, it ought at least to appear from the 
 context what species of fear was intended, or upon whom such fear 
 was intended to operate. But these counts contain no intimation 
 whatever upon what persons this intimidation was intended to oper- 
 ate ; it is left in complete uncertainty whether the intimidation was 
 directed against the peaceable inhabitants of the surrounding places, 
 against the subjects of the Queen dwelling in Ireland in general, against 
 persons in the exercise of public authority there, or even against the 
 legislature of the realm. Again, the mere allegation that these changes 
 were to be obtained by the exhibition and demonstration of physical 
 force, without any allegation that such force was to be used, or threat- 
 ened to be used, seems to us to mean no more than the mere display 
 of numbers, and consequently to carry the matter no further. Apply- 
 ing the same principle and mode of reasoning to the consideration of 
 the eighth, ninth, and tenth counts, we all concur in opinion that the 
 object and purpose of the agreement entered into by the defendants, 
 as disclosed upon these counts, is an agreement for the performance of 
 an act, and the attainment of an object, which is a violation of 
 the laws of the land. We think it unnecessary to state reasons in 
 support of the opinion that an agreement between the defendants to 
 diminish the confidence of her Majesty's subjects in Ireland in the 
 general administration of the law therein, or an agreement to bring 
 into hatred and disrepute the tribunals by law established in Ireland 
 for the administration of justice, are each and every of them agree- 
 ments to effect purposes in manifest violation of the law. Upon 
 the sufficiency of the eleventh count, no doubt whatever has been 
 raised.' (z) 
 
 A count alleged that the defendants, having in their possession two 
 horses, conspired by divers false pretences to obtain large sums of 
 money from such persons as might be desirous of purchasing the said 
 horses, and to cheat and defraud such persons of such sums of money, 
 and that the defendants, in pursuance of the said conspiracy, made 
 certain false pretences, which were set out; and that the defendants, 
 in pursuance of the said conspiracy, did obtain from W. A. an order 
 for the payment of 1151 10s. It was objected that this count was bad, 
 because it did not show that W. A. was one of the persons who was 
 desirous of purchasing the horses, and therefore he was not shown to 
 be within the objects of the conspiracy ; and the Eecorder so held, (a) 
 
 (z) O'Connell v. R., 11 CI. & F. 155. (a) R. v. Ward, 1 Cox, C. C. 101. If 
 
 The Lords all concurred in this judgment. this case is correctly reported, the decision is
 
 chap, xxiv.] Of Conspiracy. 527 
 
 An indictment for a conspiracy to conceal and embezzle the per- 
 sonal estate of a bankrupt under the 6 Geo. 4, c. 16 must state the 
 petitioning creditor's debt, the trading, and the act of bankruptcy, 
 and that the party had actually become bankrupt, (b) 
 
 Technical averment of conspiracy. — The technical averment of the 
 agreement and conspiracy, generally used in the indictment, charges 
 that the defendants ' did conspire, combine, confederate, and agree 
 together ; ' but it is said that other words of the same import seem 
 to be equally proper, (c) To the counts for a conspiracy may be 
 joined such other counts as the circumstances of the case may seem 
 to require (not charging a felony), though they do not include a 
 charge of conspiracy, (c?) 
 
 Place where the offence may be tried. — It has been holden that in 
 an indictment for a conspiracy the venue must be laid where the con- 
 spiracy was, and not where the result of such conspiracy was put in 
 execution, (e) But it was said by the court, that there seemed to be 
 no reason why the crime of conspiracy, amounting only to a misde- 
 meanor, might not be tried, wherever one distinct overt act of con- 
 spiracy was in fact committed, as well as the crime of high treason, in 
 compassing and imagining the King's death, or in conspiring to levy 
 war. (/) And a case was cited in which the trial proceeded upon 
 this principle ; and in which, though no proof of actual conspiracy, 
 embracing all the several conspirators, was attempted to be given in 
 Middlesex, where the trial took place, and though the individual act- 
 ings of some of the conspirators were wholly confined to other coun- 
 ties than Middlesex, yet the conspiracy as against all having been 
 proved, from the community of criminal purpose, and by their joint 
 co-operation in forwarding the objects of it, in different places and 
 counties, the locality required for the purpose of trial was holden to 
 be satisfied by overt acts, done by some of them, in prosecution of the 
 conspiracy in the county where the trial was had. (^) 
 
 The offence of conspiracy might formerly be tried by justices of 
 peace in their Quarter Sessions. In a case where the question of their 
 jurisdiction was raised, no authority being cited either on the one side 
 or on the other, the court decided in favour of their jurisdiction, upon 
 general principles, saying, that a conspiracy was a trespass, and that 
 trespasses were indictable at sessions, though not committed with 
 force and arms, (h) But now by the 5 & 6 Vict. c. 38, s. 1, ' neither 
 the justices of the peace acting in and for any county, riding, division, 
 
 clearly erroneous. The count alleged that (b) R. v. Jones, 4 B. & Ad. 345. 1 N". & 
 
 the defendants did obtain the money from M. 78. 
 
 W. A. 'in pursuance of the conspiracy' (c) 3 Chit. dim. L. 1143. See per Lord 
 
 which is the regular mode of connecting the Campbell, R. v. Hamp, ante, p. 499. 
 
 overt act with the conspiracy, especially (d) See the judgment of Lord Ellen- 
 
 where, as in this case, the overt act could not borough, C. J., in R. v. Johnson, 3 M. &. 
 
 be foreseen at the time when the conspiracy S. 550. In R. v. Murphy, 8 C. & P. 297, 
 
 was entered into. The overt act, therefore, counts for libel were joined, 
 
 was well laid. But even if it had been other- (c) R. v. Best, 1 Salk. 174. 
 
 wise, the count was good without it ; for the (/) R. v. Brisac, 4 East, R. 171. 
 
 conspiracy was clearly well laid : and, where (g) R. v. Bowes, cited in R. v. Brisac, 
 
 that is the case, an acquittal of the overt act supra. 
 
 is immaterial. R. v. Sterling, 1 Lev. 125, (h) R. v. Rispal, 3 Burr. 1320. 1 Black. 
 
 shows that the overt act is in such a case R. 368. Burn's Just. tit. Conspiracy, sec. 1. 
 
 immaterial. The point was so decided in an earlier case, 
 
 R. v. Edwards, 8 Mod. 320.
 
 528 Evidence. [book ii. 
 
 or liberty, nor the recorder of any borough, shall, at any session of the 
 peace, or at any adjournment thereof, try any person or persons, for 
 {inter alia') unlawful combinations and conspiracies, except conspira- 
 cies or combinations to commit any offence which such justices or 
 recorder respectively have or has jurisdiction to try when committed 
 by one person.' 
 
 A count alleged that the prisoners conspired, by divers false pre- 
 tences, against the form of the statute in that case made and provided, 
 to defraud the prosecutor of his money ; and it was objected that the 
 facts ought to have been set out so as to show that the offence intended 
 to be committed was within the jurisdiction of the sessions, by whom 
 the indictment had been tried ; but the Court of Queen's Bench held 
 that the count sufficiently showed that the sessions had jurisdiction, (i) 
 
 As to an indictment for conspiracy not being preferred without pre- 
 vious authorization, see ante, p. 2. 
 
 On an indictment against the manager and secretary of a joint stock 
 bank, the indictment containing many counts, some charging that the 
 defendants concurred in making and publishing false statements of the 
 affairs of the bank, and others that they conspired together to do so, 
 the prosecutors were put to elect on which set of counts they would 
 rely, and they having elected to rely on the counts for conspiracy, held, 
 that it was not enough to prove that the defendants made and put forth 
 false statements intended and calculated to deceive, unless they had 
 entered into a precedent and fraudulent conspiracy to do so. The chief 
 count relied upon not stating an intent to defraud any particular par- 
 ties ; held, that though there were auditors, whose duty it would be to 
 discover any frauds, that was no answer to the prosecution, if the de- 
 fendants were party to such conspiracy to deceive them and the direc- 
 tors. But, on the other hand, the jury were told that evidence that 
 the directors were privy to all that was done was very material, with 
 a view to negative such conspiracy, on the part of the defendants, to 
 deceive. (7) 
 
 Evidence. — On a prosecution against several persons for a con- 
 spiracy, the wife of one of the defendants has been holden not to be 
 a competent witness for the others, a joint offence being charged, and' 
 an acquittal of all the other defendants being a ground of discharge 
 for the husband, (k) And so it has been held, upon an indictment 
 against the wife of W. S. and others for a conspiracy in procuring 
 W. S. to marry, that W. S. was not a competent witness in support 
 of the prosecution. (/) 
 
 An able writer upon the law of evidence lays down the following 
 doctrine with respect to the acts or words of one conspirator being 
 evidence against the others. Where several persons are proved to 
 have combined together for the same illegal purpose, any act done 
 by one of the party, in pursuance of the original concerted plan, 
 and with reference to the common object, is in the contemplation of 
 
 (?) Latham v. R., 9 Cox, C. C. 516. (/) R. v. Serjeant, R. & M. N. P. R. 352. 
 
 (j) R. v. Birch, 4 F. & F. 407. See R. 1 Phill. Evid. 74. See 38 & 39 Vict. c. 86, 
 
 v. Barry, 4 F. & F. 389. s. 11, where a husband or wife is a compe- 
 
 (k) K. v. Lockyer, 5 Esp. N. P. R. 107. tent witness under that Act. 
 Lord Ellenborou^h, C. J. R. v. Frederick, 
 2 Str. 1095. 1 Phill. Evid. 74.
 
 chap, xxiv.] Of Conspiracy. 529 
 
 law the act of the whole party, and, therefore, the proof of such act 
 would be evidence against any of the others who were engaged in the 
 same conspiracy ; and, further, any declarations, made by one of the 
 party at the time of doing such illegal act, seem not only to be evidence 
 against himself, as tending to determine the quality of the act, but to 
 be evidence also against the rest of the party, who are as much re- 
 sponsible as if they had themselves done the act. But what one of 
 the party may have been heard to say at some other time, as to the 
 share which some of the others had in the execution of the common 
 design, or as to the object of the conspiracy, cannot, it is conceived, be 
 admitted as evidence to affect them on their trial for the same offence. (m) 
 And, in general, proof of concert and connection must be given, before 
 evidence is admissible of the acts or declarations of any person not in 
 the presence of the prisoner, (n) It is for the court to judge whether 
 such connection has been sufficiently established ; but when that 
 has been done, the doctrine applies that each party is an agent for the 
 others, and that an act done by one in furtherance of the unlawful 
 design, is in law the act of all, and that a declaration made by one of 
 the parties, at the time of doing such an act, is evidence against the 
 others. Thus, where Stone was indicted for treason, and one of the 
 overt acts charged was conspiring with Jackson and others to collect 
 intelligence, and to communicate it to the King's enemies in France, 
 &c, after evidence had been given to connect the prisoner with Jack- 
 son in the conspiracy as charged, the Secretary of State for the Foreign 
 department was called to prove that a letter of Jackson's, containing 
 treasonable information, had been transmitted to him from abroad, 
 but in a confidential way, which made it impossible for him to divulge 
 by whom it was communicated : and such letter was received in evi- 
 dence, (o) So, in another case, after evidence had been given of a 
 treasonable conspiracy, in which the prisoner was concerned, it was 
 held that papers found in the lodging of a co-conspirator, at a period 
 subsequent to the apprehension of the prisoner, might be read in evi- 
 dence, upon strong presumptive proof being given that the lodgings 
 had not been entered by any one in the interval between the appre- 
 hension of the prisoner and the finding of the papers, and although no 
 absolute proof had been given of their existence previous to the pris- 
 oner's apprehension, (p) But it seems that if such papers had not been 
 proved to have been intimately and immediately connected with the 
 objects of the conspiracy, they would not have been admissible ; as, in 
 the same case, a paper containing seditious questions and answers, and 
 found in the possession of a co-conspirator, was not read in evidence, 
 the court doubting whether it was sufficiently connected by evidence 
 with the object of the conspiracy to render it admissible. (^) 
 
 (m) 1 Phill. on Evid. 94, 95, 7th ed. See (o) R. v. Stone, 6 T. R. 527. 
 
 9th ed. 201. (p) R. v. Watson, 2 Stark. C. 140. R. 
 
 (n) 1 East, P. C. c. 2, s. 37, p. 96. 2 v. MacCafferty, 10 Cox, C. C. 603 ; R. v. 
 Stark. Evid. 326, and 1 Phill. Evid. 477, Meaney, 10 Cox, C. C. 506. 
 citing the Queen's case, 2 Brod. & B. 302. (q) R. v. Watson, supra. But they held 
 R. v. Jacobs, 1 Cox, C. C. 173. R. v. Duffield, that if proof were to be given that the in- 
 5 Cox, C. C. 404. See R. v. Gurney, 11 strument was to be used for the purposes 
 Cox, C. C. 414, where defendants were of the conspiracy, it would clearly be ad- 
 indicted for a conspiracy to cheat and de- missible. 
 fraud by means of a false prospectus of a 
 public company. 
 vol. i. — 34
 
 530 Evidence. [book ii. 
 
 Where, upon an indictment for conspiring to annoy a broker who 
 distrained for church-rates, it was proved that one of the defendants, 
 in the presence of the other, excited the persons assembled at a public 
 meetiug to go in a body to the broker's house ; it was held that evi- 
 dence was admissible to show that they did so go, although neither of 
 the defendants went with them, but that evidence of what a person, 
 who was at the meeting, said a few days after the meeting when he 
 himself was distrained on for church-rates, was not admissible, (r) And 
 where an indictment charged the defendant with conspiring with Jones, 
 who had been previously convicted of treason, to raise insurrections 
 and riots, and it was proved that the defendant had been a member of 
 a Chartist association, and that Jones was also a member, and that in 
 the evening of the 3d of November the defendant had been at Jones's 
 house, and was heard to direct the people there assembled to go to the 
 race-course, where Jones had gone on before with others ; it was held 
 that a direction given by Jones in the forenoon of the same day to 
 certain parties to meet on the race-course was admissible ; and it being 
 further proved that Jones and the persons assembled on the race-course 
 went thence to the New Inn, it was held that what Jones said at the 
 New Inn was admissible, as it was all part of the same transaction, (s) 
 
 A number of persons were charged with murder committed by an 
 act done in the course of a conspiracy for the purpose of liberating 
 a prisoner, of which conspiracy he was cognizant : Held, that acts 
 of that prisoner within the prison, and articles found upon him, were 
 admissible in evidence against the persons so charged, (t) 
 
 On an indictment on the 11 & 12 Vict. c. 12, s. 3, which makes it 
 a felony to compass, &c, to deprive the Queen of her crown or to levy 
 war, &c, it appeared that the prisoners from July 26th to August 16th 
 had attended meetings where plans for securing the people's charter 
 and the repeal of the union were organized, and took a prominent part 
 at those meetings : large bodies of men were formed into societies, with 
 class leaders, &c. ; some of them were selected and organized as fight- 
 ing men, and an attempt at insurrection was to be made on the 16th of 
 August ; and on that night a great number of the conspirators were 
 found at the several places of meeting previously fixed, provided with 
 arms, &c. A witness stated that at a meeting, at which none of the 
 prisoners were present, he received a leaf of a book from one Bezer, 
 which was to serve as an introduction to a subsequent meeting ; and 
 on the 20th of July he attended a second meeting, and produced the 
 leaf ; the chairman compared it with a book, and the witness was ad- 
 mitted. The prisoners were not shown to have been parties to the 
 conspiracy at the time. But it was held that the witness might prove 
 what Bezer said to him when he gave him the leaf, and also what 
 took place at the second meeting, on the ground that the prosecution 
 had a right to go into general evidence of the nature of the combina- 
 tion between the persons assembled, though the prisoners might not 
 be present, (u) And it having been proved that a large number of 
 
 (r) E. v. Murphy, 8 C. & P. 297, Cole- [u) R. v. Lacy, 3 Cox, C. C. 517. Piatt, 
 
 ridge, J. B., and Williams, J., who considered R. o. 
 
 (s) R. v. Shellard, 9 C. & P. 277, Pat- Frost, and R. v. Hunt expressly in point, 
 
 teson, J. and refused to reserve the point. See post, 
 
 (t) R. v. Desmond and others, 11 Cox, p. 535. 
 C. C. 146.
 
 chap, xxiv.] Of Conspiracy. 531 
 
 armed men were found assembled at a public house on the 16th of 
 August, the time which had been fixed for the general outbreak, but 
 none of these men had been previously connected with the conspiracy. 
 nor did it appear that the house had ever been recognized as a place of 
 meeting ; it was held that evidence was admissible of what was done 
 at that public-house ; because it appeared that on this day there was 
 to be a collection of armed persons, (v) 
 
 On an indictment for a conspiracy to prevent workmen from con- 
 tinuing in their service as tin-plate workers, it appeared that the 
 workmen had been holding shop-meetings and discussions, and the 
 prosecutor, a manufacturer, had published a placard offering constant 
 employment to tin-plate workers, and after that a handbill was cir- 
 culated about the town, and copies of it stuck up in the windows of 
 beer-shops and public -houses, and one of them in the window of a 
 public-house frequented by the tin-plate workers, and another at a 
 public-house at which one Peel, Green, and Winters, alleged con- 
 spirators, lodged, and the defendants had been continually into those 
 houses whilst the bill was in the windows. The bill was addressed 
 ' To the members of the several trade societies connected with the 
 National Association of United Trades by the central committee,' and 
 recited that the committee had been called upon for advice by the 
 tin plate-workers of the town to enable them to obtain an established 
 book of prices ; and that communications had taken place with the 
 prosecutor about the amount of wages, but that no arrangement could 
 be made with him. The bill was signed by Peel as general secretary, 
 and mentioned Green and Winters as having visited the prosecutor, 
 but did not mention any of the defendants. Erie, J., held that the 
 bill was not admissible as the act of the defendants, either by them- 
 selves or as published or recognized by them. ' You may make a 
 handbill evidence against a man, if I may so say, by retrospective light 
 arising from his conduct. If a handbill says that certain things will 
 be done by certain persons, and that handbill is circulated, where 
 those persons probably saw it, and they do the very thing that the 
 handbill indicates they would do, when that is in evidence, I am of 
 opinion that the bill would be admissible against them ; but we are 
 not at that stage yet.' (w) But on the trial of another indictment 
 against Rowlands, Green, Peel, Winters, and others, arising out of the 
 same transactions, where, in addition to the evidence in the previous 
 case, it was proved that Rowlands had been at the Swan whilst the 
 bill was exhibited there, and Peel had been seen going in and out, and 
 the bill was in such a situation that he must have seen it ; Erie, J., 
 held that it was admissible. ' If it is evidence against any one of the 
 defendants, it is admissible.' ' I believe it is admissible against those 
 in respect of whom I draw the inference that they saw it in the win- 
 dow ; those in respect of whom it announces any intention. Green 
 and Winters are the two that are named in it. It purports to be an 
 instrument by Peel, and I think there is evidence before me, from 
 which I am of opinion that Peel had seen that instrument, and it is 
 probable, by his not objecting to it, that he permitted his name to be 
 used to that instrument.' ' I am clear that it is evidence as against 
 
 (v) Ibid. (w) R. v. Duffield, 5 Cox, C. C. 404.
 
 532 Evidence. [book ii. 
 
 one of the defendants, it being published in his name, and, according 
 to the evidence, being probably seen by him.' (x) 
 
 Upon the trial of Blake on an information for a conspiracy with one 
 Tye to pass imported goods without paying the full duty, it appeared 
 that Tye acted as agent for the importer of the goods, and Blake as 
 landing-waiter at the Custom-house, and that it was Tye's duty to 
 make an entry describing the quantity and particulars of the goods 
 necessary to determine the amount of duty. This entry is called the 
 Perfect Entry, which is left at the Custom-house, and the particulars 
 are there copied into the Blue-book, which was delivered to Blake, 
 the landing-waiter, whose duty was to examine the goods, and, if he 
 found them correspond with the particulars in the Blue-book, to write 
 ' Correct ' across the Perfect Entry, whereupon the goods would be de- 
 livered to the importer upon payment of the duties so ascertained. 
 The goods were passed to Tye, the duty having been paid on the Per- 
 fect Entry made out by Tye, which corresponded with the entry in 
 the Blue-book. It was then proposed to put in Tye's Day-book, and 
 to show by Tye's own entry therein that the quantity of goods was 
 much larger than appeared by the Perfect Entry and Blue-book, and 
 that the importer had been charged the duties by Tye on such larger 
 amount, and had paid them accordingly. It was objected for Blake 
 — Tye not being on his trial ■ — that the entry in Tye's book was not 
 evidence against Blake ; but Lord Denman, C. J., admitted the evi- 
 dence ; and the Court of Queen's Bench held, on a motion for a new 
 trial, that the Day-book was evidence of something done in the course 
 of the transaction, and was properly admitted as a step in the proof of 
 the conspiracy, {y) Evidence was given, in the same case, to show 
 that a cheque drawn by Tye for a certain sum, and dated after the 
 goods were passed, had been cashed, and the proceeds traced to Blake. 
 It was then proposed to put in evidence the counterfoil of the cheque 
 in Tye's cheque-book, on which was written an account showing that 
 the cheque was drawn for a sum amounting to half the profit arising 
 from transactions, including the alleged fraud on the revenue, as mani- 
 fested by the several items in that account. To this evidence a simi- 
 lar objection was taken, but Lord Denman, C. J., admitted it. The 
 Court of Queen's Bench, however, held that the evidence ought not to 
 have been admitted. The conspiracy to defraud the customs had been 
 carried into effect before the cheque was drawn ; and the writing on 
 the counterfoil was in effect a declaration by Tye for what purpose 
 he had drawn the cheque, and how the money was to be applied. 
 Now no declaration of Tye could be received in evidence against 
 Blake, which was made in Blake's absence, except it related to the 
 furtherance of the common object ; which this did not. (z) 
 
 On an indictment for conspiracy to defraud the shareholders of the 
 British Bank by falsely representing its affairs to be prosperous, the 
 examination of one of the defendants, which had been taken on a 
 petition for winding up the bank after the date of the alleged con- 
 spiracy, was tendered in evidence. This examination showed that 
 
 (x) R. v. Rowlands, 5 Cox, C. C. 436. (y) R. v. Blake, 6 Q. B. 126. 
 
 It does not appear that this ruling was (s) R. v. Blake, supra. 
 
 questioned in the Court of Queen's Bench.
 
 chap, xxiv.] Of Conspiracy. 533 
 
 this defendant was aware of the insolvency of the bank, and alleged 
 that the other directors had the same knowledge. It was objected 
 that this examination was not evidence of any act done in further- 
 ance of the conspiracy; and that it was not admissible until the other 
 defendants were connected with this defendant in the conspiracy. 
 But Lord Campbell, C. J. (after consulting the other judges of the 
 Queen's Bench), said, ' We are all of opinion that the deposition is 
 admissible against this defendant, as tending to show his knowledge 
 before and at the time of his committing the overt act, but not as 
 against the other defendants. Therefore only such parts should be 
 read as refer to the deponent alone.' (a) 
 
 The evidence in support of an indictment for a conspiracy is gen- 
 erally circumstantial; and it is not necessary to prove any direct 
 concert, or even any meeting of the conspirators, as the actual fact 
 of conspiracy may be collected from the collateral circumstances of 
 the case, (b) Although the common design is the root of the charge, 
 yet it is not necessary to prove that the defendants came together, 
 and actually agreed in terms to have the common design, and to 
 pursue it by common means, and so to carry it into execution, be- 
 cause in many cases of the most clearly established conspiracies 
 there are no means of proving any such thing, (c) If, therefore, two 
 persons pursue by their acts the same object, often by the same 
 means, one performing one part of an act, and the other another part 
 of the same act, so as to complete it, with a view to the attainment 
 of the object they were pursuing, the jury are at liberty to draw 
 the conclusion that they have been engaged in a conspiracy to effect 
 that object, (d) It is a mistake to say that a conspiracy must be 
 proved before the acts of the alleged conspirators can be given in 
 evidence. It is competent to prove insulated acts as steps by which 
 the conspiracy itself may be established, (e) And in a late case the 
 jury were told that it does not happen once in a thousand times when 
 the offence of conspiracy is tried that anybody comes before the jury 
 to say that he was present at the time when the parties did conspire 
 together, and when they agreed to carry out their unlawful purposes ; 
 that species of evidence is hardly ever to be adduced before a jury ; 
 but the unlawful conspiracy is to be inferred from the conduct of the 
 parties ; and if several men are seen taking several steps, all tending 
 towards one obvious purpose, and they are seen through a continued 
 portion of time taking steps that lead to one end, it is for the jury to 
 say whether those persons had not combined together to bring about 
 that end, which their conduct appears so obviously adapted to effectu- 
 ate. (/ ) In a case where a husband, wife, and their servants, were 
 indicted for a conspiracy to ruin the trade of the prosecutor, who was 
 the King's card-maker, the evidence against them was, that they had 
 at several times given money to the prosecutor's apprentices to put 
 grease into the paste, which had spoiled the cards ; but there was no 
 
 (a) R. v. Esdaile, 1 F. & F. 213. (d) Per Coleridge, J., R. v. Murphy, 
 
 (b) R. v. Parsons, 1 Black. R. 392. siqrra. 
 
 (c) Per Coleridge, J., R. v. Murphy, 8 C. (c) Per Alderson, B., Ford v. Elliott, 4 
 & P. 297. R. v. Brittain, 3 Cox, C. C. 76, Exch. R. 78. 
 
 per Coltman, J. ( f) Per Erie, J., R. r. Duffield, 5 Cox, 
 
 C. C. 404.
 
 534 Evidence. [book ii. 
 
 account given that ever more than one at a time was present, though 
 it was proved they had all given money in their turns ; it was objected 
 that this could nut be a conspiracy, on the ground that several persons 
 might do the same thing, without having any previous communica- 
 tion with each other. But it was ruled that the defendants being all 
 of a family, and concerned in making of cards, it would amount to 
 evidence of a conspiracy, (y) And it appears also to have been con- 
 sidered that if a banker permits a sum of money to be lodged at his 
 house, to be paid over for corruptly procuring an appointment under 
 government, he may be indicted for a conspiracy along with those 
 who are to procure the appointment, and receive the money. (h) 
 
 Every person concerned in any of the criminal parts of the transac- 
 tion alleged as a conspiracy may be found guilty, though there be no 
 evidence that such persons joined in concerting the plan, or that they 
 ever met the others, and though it is probable they never did, and 
 though some of them only join in the latter parts of the transaction, and 
 probably did not know of the matter until some of the prior parts of the 
 transaction were complete, (i) So that if several persons meet from 
 different motives, and then join in effecting one common and illegal 
 object, it is a conspiracy. (/) Where, therefore, upon an information for 
 a conspiracy to ruin Macklin, the actor, in his profession, it was ob- 
 jected that in support of the prosecution evidence should be given of 
 a previous meeting of the parties accused for the purpose of confedera- 
 ting to carry their object into execution ; Lord Mansfield, C. J., over- 
 ruled the objection, saying that if a number of persons met together 
 for different purposes, and afterwards joined to execute one common 
 purpose, to the injury of the person, property, profession, or character 
 of a third party, it was a conspiracy, and it was not necessary to prove 
 any previous consult or plan among the defendants against the person 
 intended to be injured, (k) 
 
 It appears to have been held that upon an indictment for a conspir- 
 acy, where, from the nature of the case, it would be difficult to prove 
 the privity of the parties accused, without first proving the existence of 
 a conspiracy, the prosecutor may go into general evidence of its nature, 
 before it is brought home to the defendants. The indictment charged 
 the defendants, who were journeymen shoemakers, with a conspiracy 
 to raise their wages ; and evidence was offered on the part of the prose- 
 cution of a plan for a combination amongst the journeymen shoemakers, 
 formed and printed several years before, regulating their meetings, 
 subscriptions, and other matters for their mutual government in for- 
 warding their designs. This evidence was objected to by the counsel 
 for the defendant ; but Lord Kenyon, C. J., said, that if a general 
 conspiracy existed, general evidence might be given of its nature, and 
 the conduct of its members, so as to implicate men who stood charged 
 with acting upon the terms of it years after those terms had been 
 established, and who might reside at a great distance from the place 
 where the general plan was carried on ; and his Lordship, therefore, 
 
 (g) R. v. Cope, 1 Str. 144. (k) Lee's case, 2 M'Nally, Evid. 634, as 
 
 (h) R. v. Polhnan, 2 Campb. 233. cited Rose. Cr. Evid. 385. S. P. per Cole- 
 
 (i) R. v. Lord Grey, 9 St. Tri. 127. R. ridge, J. R. v. Murphy, 8 C. & P. 297. See 
 
 v. Murphy, 8 C. & P. 297, Coleridge, J. ante, p. 492, note (£)." 
 (j) R- v. Lee, 2 Stark. Evid. 324.
 
 chap, xxiv.] Of Conspiracy. 535 
 
 permitted a person, who was a member of this society, to prove the 
 printed regulations and rules of the society, and that he and others 
 acted under them, in execution of the conspiracy charged upon the 
 defendants, as evidence introductory to the proof that they were 
 members of such society, and equally concerned ; but he observed, 
 that it would not be evidence to affect the defendants until they were 
 made parties to the same conspiracy. (/) And in several important 
 cases, evidence has been first given of a general conspiracy before any 
 proof of the particular part which the accused parties have taken, (m) 
 
 It has also been held that the prosecutor may either prove the con- 
 spiracy, which renders the acts of the conspirators admissible in evi- 
 dence, or he may prove the acts of the different persons, and thus 
 prove the conspiracy. Where, therefore, a party met, which was joined 
 by the prisoner the next day, it was held that directions given by 
 one of the party on the day of their meeting as to where they were 
 to go and for what purpose, were admissible, and the case was said to 
 fall within R. v. Hunt, {%) where evidence of drilling at a different 
 place two days before and hissing an obnoxious person was held 
 receivable, (o) 
 
 But after such general evidence has been received the parties 
 before the court must be affected for their share of it. And it seems 
 that mere detached declarations and confessions of persons not de- 
 fendants, not made in the prosecution of the object of the conspiracy, 
 are not evidence to prove its existence, although consultations for the 
 purpose, and letters written in prosecution of the design, but not sent, 
 are admissible, (jp) It results from the principles already stated, and 
 it has been observed as a conclusion to which they lead, that it seems 
 to make no difference as to the admissibility of the act or declaration 
 of a co-conspirator against the party defendant before the Court, 
 whether such co-conspirator be indicted or not, or tried or not with 
 the defendant, (q) The evidence is admitted on the ground that the 
 act or declaration of one is the act or declaration of both when united 
 in one common design. 
 
 Where the indictment charged the defendants with conspiring to 
 cause themselves to be believed persons of large property for the 
 purpose of defrauding tradesmen, evidence was given of their having 
 hired a house in a fashionable street, and represented themselves to 
 one tradesman employed to furnish it as people of large fortune ; and 
 then a witness was called to prove that at a different time they had 
 made a similar representation to another tradesman. The evidence of 
 this witness was objected to on the ground that it was not competent 
 to the prosecutor to prove various acts of this kind, and that he was 
 bound to select and confine himself to one. But Lord Ellenborough, 
 C. J., said, ' This is an indictment for a conspiracy to carry on the 
 
 (l) R. v. Hammond, 2 Esp. N. P. R. 718. Lovat's case, 18 St. Tr. 530. Hardy's case, 
 
 Lord Kenyon referred to the cases of the 24 St. Tr. 129. Home Tooke's case, 25 St. 
 
 state trials in the year 1745, where from Tr. 1. 
 
 the nature of the charge it was necessary (n) 3 B. & Aid. 566. 
 
 to go into evidence of what was going on (o) R. v. Frost, 9 C. & P. 129. Tindal, 
 
 at Manchester and in France, Scotland, and C. J., Parke, B., and Williams, J. 
 
 Ireland, at the same time. (p) 2 Stark. Evid. 327. 
 
 (m) Lord Stafford's case, 7 St. Tr. 1218. (q) 2 Stark. Evid. 329. 
 Lord W. Russell's case, 9 St. Tr. 578. Lord
 
 536 Evidence. [book ii. 
 
 business of common cheats, and cumulative instances are necessary to 
 prove the offence.' (r) And, in a similar case, the same course was 
 allowed as to acts done both in and out of the county where the 
 indictment charged the conspiracy to have been, (s) 
 
 But where a count alleged that the defendant and others did con- 
 spire to defraud J. Donkersley and others of certain goods, and that 
 in pursuance of the said conspiracy the defendant did falsely pretend 
 to the said J. D. that he was a merchant of the name of Grantham, 
 carrying on business at Leeds and Huddersfield ; and in further prose- 
 cution of the said conspiracy, and under colour of a pretended con- 
 tract with the said J. D. for the purchase of certain cloth of the goods 
 of the said J. D. and others, did obtain possession of a large quantity 
 of cloth of the goods of the said J. D. and others, from the said J. D., 
 with intent to cheat the said J. D. and others, to the great damage of 
 the said J. D. and others ; and it appeared that J. D. had partners , 
 and evidence was given to show an intended fraud upon that firm ; 
 and it was also proposed to give evidence of attempts made by the 
 defendant to defraud other persons, as well as the firm of J. D. and 
 Co., of their goods: it was objected that the word 'others' must be 
 taken to mean others the partners of J. D. ; that where the goods 
 were stated to be the goods of J. D. and others, it could only mean 
 others his partners, and the word could not have one meaning at one 
 part of the count, and another at another part of the same count. The 
 evidence was received ; but, upon a case reserved, the judges held the 
 conviction wrong, (t) 
 
 In the case of a conspiracy to raise the price of the public funds by 
 false rumours, it was holden that the court will take judicial notice 
 that a war exists between this country and a foreign state, such war 
 having been recognized in different Acts of Parliament ; and, therefore, 
 that an allegation to that effect need not be proved, (u) 
 
 Where an indictment alleged that the defendants conspired falsely 
 to accuse the prosecutor of having feloniously forged a cheque for the 
 payment of 178/., and that in execution of such conspiracy a letter 
 was written by one of the defendants, in which he stated that he had 
 been employed to investigate the circumstances attending the forging 
 of a cheque for 178/., and proof was given of the letter, and also of 
 conversations referring in like manner to a cheque, which the defend- 
 ants charged the prosecutor with having forged, but the cheque itself 
 was not produced ; it was objected that the cheque was so incor- 
 porated with the evidence, that the prosecutor was not entitled to 
 prove the conversations without producing the cheque to which they 
 referred, which it appeared from the evidence was in existence, and in 
 the possession of the defendants. Lord Tenterden, C. J., was, how- 
 ever, of opinion that it was not essential to prove the contents of the 
 cheque or to produce it, but that it was enough to take the conver- 
 
 (/•) R. v. Roberts, 1 Campb. 399. Ante, defendant is right in saying that the word 
 
 p. 504. "others" must have the same meaning in 
 
 (s) R. v. AVhitehouse, MSS. C. S. G. the earlier part of the count as in the latter 
 
 6 Cox, C. C. 38. part of it ; and with respect to the prop- 
 
 (t) R. v. Steel, 2 M. C. C. R. 246, C. & erty of the goods, it must mean that they 
 
 M. 337. No ground for the decision is stated, were the goods of J. D. and his partners. 
 but Lord Abinger said, at the close of the (u) R. v. De Berenger, 3 M. & S. 67. 
 
 argument, ' I think the counsel for the Ante, p. 500.
 
 chap, xxiv.] Of Conspiracy. 537 
 
 sations as they passed. And the Court of King's Bench, upon a rule 
 to show cause why there should not be a new trial, held that it 
 was not necessary to produce the cheque. The whole of the charge 
 against the defendants was founded on the letter set out in the in- 
 dictment, which was written by one of the defendants upon the appli- 
 cation of the other ; and they having taken upon themselves to treat 
 as an existing thing a cheque for 1781., it was not necessary, on the 
 part of the prosecutor, to produce it in evidence, even although it 
 appeared that it actually existed. But it might be a fabrication on 
 their part ; there might be no such cheque, and then it could not be 
 produced, (v) 
 
 A count alleged that the defendants, a husband, wife, and daughter, 
 being in low and indigent circumstances, conspired to cause the hus- 
 band to be reputed and believed to be a person of considerable property, 
 and in opulent circumstances, for the purpose and with the intent of 
 cheating and defrauding divers tradesmen who should bargain with 
 them for the sale to the husband of goods, the property of such trades- 
 men, of great quantities of such goods, without paying for the same. 
 The wife and daughter usually were together, and on some occasions 
 represented that they were in independent circumstances, their income 
 being interest of money coming in monthly, and in others the wife 
 had said her husband was in independent circumstances. These state- 
 ments were made in the absence of the husband ; but it was proved 
 that he either occupied the lodgings which were hired under these 
 representations, or that the goods were delivered at the places where 
 all the defendants lodged. Piatt, B., is reported to have held that there 
 was no evidence of any conspiracy to represent the husband as a person 
 of considerable property, (w) Another count alleged the conspiracy in 
 the same manner as the preceding, but charged the intent to be to 
 defraud persons who should let the husband lodgings for hire, of divers 
 large sums of money, being the sums agreed to be paid for the hire of 
 such lodgings ; and Piatt, B., is reported to have held that this count 
 was not supported, as well on the ground on which the preceding 
 count was not supported, as because the object of the defendants was 
 to obtain possession of the lodgings, and to deprive the landlord of the 
 use of the rooms, but not to deprive him of the price, which was only 
 incidental to their occupation. They had no object in depriving him 
 of the profits of the rooms, apart from their own occupation of them, (x) 
 
 Two counts of an indictment charged the defendants with conspir- 
 ing to obtain from the prosecutor certain bills of exchange accepted by 
 him, amounting to a large sura of money, and to cheat and defraud him 
 of the proceeds of the said bills ; other counts charged a conspiracy to 
 defraud the prosecutor of his monies. Evidence was given to show 
 the obtaining of the acceptances, but it appeared that the prosecutor 
 had not parted with any money, and there was no reason to suppose 
 
 (v) R. v. Aldridge, 1 N. & M. 776. of all. The prisoners came to the town 
 
 (w) R. v. Whitehouse, 6 Cox, C. C. 38. together, lived together, and enjoyed the 
 
 (x') R. v. Whitehouse, 6 Cox, C C. 38. fruits of their frauds together ; but the 
 
 I was counsel for the crown in this case, conspiracy could only be inferred from a 
 
 and my recollection of it is that the case great number of isolated acts, in none of 
 
 went to the jury on all the counts. The which were all of the prisoners engaged, 
 
 main question in the case was whether every C. S. G. 
 representation made was the representation
 
 538 Evidence. [book ii. 
 
 that he intended to take up the acceptances, and it was not shown 
 that the hills which he accepted were ever in his hands, except for the 
 purpose of his writing his acceptances, they having been brought to 
 him complete, except as to his signature. The jury having found the 
 defendants guilty on these counts, the verdict was impeached as un- 
 supported by the evidence, because the charge was of a conspiracy to 
 obtain acceptances from the prosecutor, whereas he proved that the 
 acceptances were ready written, and in possession of the defendants, 
 or some of them, and nothing was sought but his signature ; but the 
 Court of Queen's Bench thought that this was substantially the same 
 thing. It was only by the signature of the prosecutor that the bills 
 became complete ; and his acceptance when given, being without any 
 consideration, was at the instant his, and in his possession. It was 
 also urged that the entire transaction, as proved by the evidence, was 
 at variance with the indictment, as all parties well knew that the pros- 
 ecutor had no money, nor could be defrauded of any ; and that the 
 real fraud was on the prosecutor's part, to the prejudice of some 
 expected lender of the sums mentioned in the bills, in return for accept- 
 ances of no value. But the court held that, though there might be 
 some ground for this imputation on the prosecutor, yet it would not 
 disprove the fraud practised upon him, by inducing him to accept bills 
 without a corresponding advance of cash. Though there was little 
 appearance of solvency in the prosecutor, those who fraudulently 
 induced him to incur the liability must have speculated on some 
 pecuniary advantage from it ; and though the money could in such 
 case only have come from his respectable friends, as he had no funds 
 of his own, the money intended to be so procured might well be de- 
 scribed for this purpose as his money, (y) 
 
 The expression ' false pretences ' as used in indictments for con- 
 spiracy is not construed in the technical sense in which it is in indict- 
 ments for obtaining property by false pretences, (z) Where, therefore, 
 a count charged the defendants with a conspiracy by divers subtle 
 means and false pretences to obtain goods, it was held that an actual 
 false pretence need not be proved under this count, in the same 
 manner as if it had been a count for obtaining property by false 
 pretences, (a) 
 
 Absolon and Clark were indicted for conspiring to defraud a railway 
 company by obtaining excursion tickets not transferable, and selling 
 them to others. Absolon had sold the excursion tickets to Clark at 
 Brighton, and Clark attempted to use them for the purpose of sending 
 back to London some children. It did not appear how Absolon got 
 the tickets ; he had others in his possession. Wightman, J., left it 
 to the jury to determine whether the prisoners did concert together 
 that the tickets should be obtained and used for the purpose of de- 
 frauding the company, (b) 
 
 On an indictment for a conspiracy to cause tinplate-workers to leave 
 their employment, it appeared that the prosecutors, in consequence of 
 their workmen leaving their service, had employed Frenchmen ; and 
 Erie, J., held that it was not competent to prove how much the firm 
 
 (y) K. v. Gompertz, 9 Q. B. 824. (a) R. v. AVhitehouse, 6 Cox, C. C. 36. 
 
 (z) E. v. Hudson, Bell, C. C. 263, ante, Piatt, B. 
 p. 506. (b) R. v. Absolon, 1 F. & F. 498.
 
 ciiai\ xxiv.] Of Conspiracy. 530 
 
 had lost by these Frenchmen, as the amount of loss by any particular 
 set of workmen was clearly unconnected with the issue whether there 
 was a conspiracy or not ; but that the sum total of the loss might be 
 proved ; for the very issue in the matter was the intention to obstruct 
 the business, and the result of the operations was a relevant fact as to 
 that, (c) 
 
 Where one of several defendants charged with a conspiracy has 
 been acquitted, the record of acquittal is evidence for another defendant 
 subsequently tried, (d) 
 
 Where an indictment charged that the defendant with divers others 
 did conspire to prevent the workmen of one J. G. from continuing to 
 work in a colliery ; Patteson, J., held, that a conspiracy to procure the 
 discharge of any of the workmen would support the indictment, which 
 did not necessarily lay the intent as to all the workmen, (e) 
 
 On an indictment for a conspiracy to induce tinplate-workmen to 
 leave their employment, it appeared that three of the defendants had 
 come down by invitation from the tinplate-workers' association, and 
 had held meetings with the workmen ; and Erie, J., allowed a wit- 
 ness for the defence to be asked, 'With reference to hired men and 
 apprentices, persons under contract to their employers, what advice 
 did these defendants give to the men ? ' and also, ' Whether the wit- 
 ness ever heard them either use any intimidating language or threats, 
 or recommend force of any kind ? ' (/) 
 
 Two persons were indicted for felony, in attempting to poison A. B., 
 by administering certain poisonous ingredients, as set forth in the 
 indictment. At the same time, an indictment was found against them 
 for a conspiracy to poison the same individual by the same means. 
 On the trial of the first indictment, the prisoners were acquitted, there 
 being no proof that the ingredients were poisonous. Parke, J., there- 
 upon directed an acquittal for the conspiracy also, there being no other 
 proof of a conspiracy to poison than that by which it was attempted 
 to establish the felony, viz., that the ingredients were poisonous. Qj) 
 
 Where an indictment against A., B., C, and D., charged that they 
 conspired together to obtain, ' viz., to the use of them the said A., B., 
 and O, and certain other persons to the jurors unknown,' a sum 
 of money for procuring an appointment under government ; and it 
 appeared that D. (although the money was lodged in his hands, to 
 be paid to A. and B. when the appointment was procured), did not 
 know that C. was to have any part of it, or was at all implicated in 
 the transaction ; it was holden, that the averment concerning the 
 application of the money was material, though coming under a viz., 
 and that as to D., the conspiracy was not proved as laid. (/?) 
 
 Where an indictment for a conspiracy to procure false witnesses on 
 the trial of an ejectment, at the great sessions for the county of 
 Glamorgan, stated that at the general sessions of our Lord the King, 
 holden, &c, an action of ejectment was depending, in which action 
 J. Doe, on the demise of W. Eees and D. Terry, was the plaintiff, and 
 
 (c) R. v. Rowlands, 5 Cox, C. C. 436. (e) R. v. Bykerdyke, 1 M. & Rob. 179. 
 All the counts ended 'to the great damage' (/) R. ;-. Rowlands, 5 Cox, C. C. 436. 
 of the prosecutors. (g) Maudsley's case, 1 Lew. 51. 
 
 (d) R. v. Home Tooke, 1 Chitty, Burn. (h) R. v. Tollman, 2 Campb. 231. 
 823, seel quaere. See note, ante, p. 512.
 
 540 Evidence. [book ii. 
 
 R. Thomas and T. Beavan the defendants, and it appeared that the 
 ejectment was brought on a joint and two several demises of Pees and 
 Terry ; it was held, first, that the description of the sessions was 
 erroneous, as it should have been at the great sessions ; secondly, 
 that there was a variance between the action described in the indict- 
 ment and the action proved to have been pending, (i) 
 
 Where the defendants were indicted for a conspiracy to cheat any 
 person whom they should deal with, and the conspiracy proved was 
 to cheat A., B., and C. ; Parke, B., thought the offence different, and 
 directed an acquittal, (j) 
 
 "Where an indictment for a conspiracy stated in the inducement 
 that the defendants knew that the parties conspired against were the 
 proprietors of certain licensed stage carriages, and as such proprietors 
 liable to certain penalties, in which the drivers of such carriages 
 should be convicted of any offence committed by the said drivers, 
 against ' a certain Act of Parliament made and passed in the second 
 and third years of the reign of his present Majesty, intituled, &c.' 
 (setting out the title correctly) ; and that the defendants unlawfully 
 conspired falsely to exhibit a certain information charging, &c, con- 
 trary to the form of the statute in such case made and provided ; the 
 judgment was arrested, on the ground that a statute cannot be pleaded 
 as made in two years ; for in law an Act cannot be made in two 
 years, (k) 
 
 Where the counts in an indictment for a conspiracy are framed in 
 a general form, the judge will order the prosecutor to furnish the 
 defendants with a particular of the charges upon which he means to 
 rely, and such particular ought to be so framed as to give the defend- 
 ants the same information as would be given by a special count ; but 
 it need not state the specific acts the defendants are charged with 
 having done, or the times or places at which such acts are alleged to 
 have taken place. (I) But where a count alleges overt acts, the Court 
 will not order particulars to be delivered, where there is no affidavit 
 on the part of the defendant that he has no knowledge of the overt 
 acts charged, and does not possess sufficient information to enable 
 him to meet them, (m ) 
 
 In the British Bank case an order had been made on the first day 
 of the trial that particulars of Cameron's debt, which was stated to be 
 36,000/., should be delivered to him ; and it was objected that until 
 the particulars had been given that case could not be gone into. It 
 was answered that Cameron had had access to the accounts for some 
 
 (i) R. v. Thomas, 1 C. & P. 472, J. A. C. C. 32 («)• In Anonymous, 1 Chitty, 
 
 Park, J. 698, the Court of King's Bench refused to 
 
 (./) Anonymous, mentioned by Parke, B., order such particulars to be given on motion, 
 
 in R. v. King, 7 Q. B. 798. but intimated that the correct course was 
 
 (k) R. v. Biers, 1 A. & E. 327. The to apply to the prosecutor to give some 
 correct statement is ' a certain statute made information as to the particulars upon which 
 and passed in a session of Parliament, held he meant to rely in support of the indict- 
 in the first and second years of the reign ment, and if he refused, then an application 
 of King William the Third.' Per Patte- might be made to postpone the trial in order 
 son, J., ibid. Gibhs v. Pike, 8 M. & W. that the question might be more maturely 
 223. S. P. discussed. From which it is to be inferred 
 
 (?) P. v. Hamilton, 7 C. & P. 448. that the motion had been made without any 
 
 Littledale, J., after consulting several of the previous application for particulars to the 
 
 other judges. R. v. Rycroft, 6 Cox, C. C. prosecutor. C. S.G. 
 76. Williams, J., R." v. Probert, Dears. (m) R. v. Stapylton, 8 Cox, C. C. 69.
 
 chap, xxiv.] Of Conspiracy. 541 
 
 months ; and Lord Campbell, C. J., held that the crown could not be 
 precluded from giving evidence on that part of the case, (n) 
 
 Upon the trial of an indictment for a conspiracy, the counsel for the 
 prosecution has a right, before opening his case, to have any of the 
 defendants acquitted, in order that he may call them as witnesses, and 
 the counsel for the other defendants has no power of objecting to this 
 being done, (o) 
 
 Where an indictment contained counts for a conspiracy and counts 
 for a libel contained in a hand-bill, and there was no evidence to 
 affect one of the two defendants as to the libel ; Coleridge, J., at the 
 close of the case for the prosecution, put the prosecutor to elect upon 
 which charge he would go, before the defendants' counsel entered upon 
 the defence, (p) 
 
 As conspiracy is an offence at common law, if parties conspire to 
 commit an offence created by statute, they may be indicted for such 
 conspiracy, although the statute be repealed before the indictment is 
 preferred, (q) 
 
 The Court of King's Bench have refused to change the venue in 
 an indictment for a conspiracy to destroy foxes and other vermin, on 
 the ground that the gentlemen who were likely to serve on the jury 
 to try the indictment were much addicted to fox-hunting, (r) 
 
 In one case, a point arose as to the extent to which the counsel for 
 the prosecution in a case of conspiracy might cross-examine a witness, 
 called by only one of several defendants. The indictment was against 
 A., B., and C. ; and after the case for the prosecution was closed, C. 
 only called a witness, whom he examined as to a conversation between 
 himself and A. ; and it was ruled, that the counsel for the prosecution 
 might cross-examine such witness as to any other conversation between 
 A. and C, although the evidence should tend chiefly to criminate A. (s) 
 
 If upon an indictment for conspiracy, the jury find the defendants 
 guilty of so much of the indictment as amounts to a misdemeanor, the 
 Court may pass judgment upon the defendants. The defendants were 
 indicted for conspiring falsely to indict A. B. for keeping a gaming- 
 house, for the purpose of extorting money from the said A. B., and the 
 jury found the defendants guilty of conspiring to indict A. B., for the 
 purpose of extorting money, but not to indict him falsely ; and it was 
 held that enough of the indictment was found to enable the Court to 
 give judgment ; for, in criminal cases, it is sufficient for the prosecu- 
 tor to prove so much of the charge as constitutes an offence punish- 
 able by law ; and the jury had found the defendants guilty of conspiring 
 to prefer an indictment for the purpose of extorting money, and that 
 is a misdemeanor, whether the charge were or were not false, (t) 
 
 Where a count alleged that the defendants conspired by divers 
 false pretences and subtle means and devices to extort from T. E. a 
 sovereign of his monies, and to cheat him of the same, and the evi- 
 dence failed to prove any false pretences ; it was held that an indict- 
 able offence was charged without reference to the false pretences, and 
 
 (») R. v. Esdaile, 1 F. & F. 213. (r) R. v. King, 2 Chitty Rep. 217. 
 
 (o) R. v. Rowland, R. & M. N. P. R. (s) R. v. Kroehl, 2 Stark. N. P. R. 343. 
 
 401, Abbott, C. J. (t) R. v. Hollingberry, 4 B. & C. 329. 
 
 (p) R. v. Murphy, 8 C. & P. 297. 6 D. & R. 345. 
 
 \q) R. v. Thompson, 16 Q. B. 832 ; R. 
 v. Bunn, 12 Cox, C. C. 316.
 
 542 Verdict. [book ii. 
 
 therefore it was not necessary to prove the false pretences, but it was 
 sufficient to prove enough to sustain the rest of the count, (u) 
 
 Upon an indictment for conspiracy containing eight counts the jury 
 found a verdict of guilty on six of the counts ; there was only one 
 conspiracy proved, but the evidence proved the allegations contained 
 in each count : it was objected in arrest of judgment that each count 
 charged a distinct conspiracy, and therefore as many distinct con- 
 spiracies were found as there were counts ; but the Court of Queen's 
 Bench held that the answer was, that the evidence accorded with and 
 proved the allegations in each count, and the verdict was founded 
 thereon ; and if any count were objectionable, it must not be presumed 
 that the defendants would ever receive any sentence in respect of any 
 such count, (v) 
 
 Where a count contains only one charge of conspiracy against sev- 
 eral defendants, the jury cannot find one of them guilty of more than 
 one charge. Where, therefore, a count charged several defendants with 
 conspiring to do several illegal acts, and the jury found one of them 
 guilty of conspiring with some of the defendants to do one of the acts, 
 and guilty of conspiring with others of the defendants to do another of 
 the acts, it was held by the House of Lords that such finding was bad ; 
 as it amounted to finding that one defendant was guilty of two con- 
 spiracies, though the count charged only one. (w) So where a count 
 charged eight defendants with one conspiracy to effect certain objects, 
 a finding that three of the defendants were guilty generally, and that 
 five of them were guilty of conspiring to effect some, and not guilty as 
 to the residue of these objects, was held to be bad and repugnant ; for 
 the finding that three were guilty was a finding that they were guilty 
 of conspiracy with the other five to effect all the objects of the con- 
 spiracy ; whereas, by the finding as to the five, it appeared that those 
 five were guilty of conspiring to effect only some of those objects, (x) 
 
 Where an indictment contains several counts, one of which is bad, 
 a general judgment for the crown, where the punishment is not fixed 
 by law, is bad ; and a bad finding on a good count is no more a war- 
 rant for a judgment on that count than a bad count. Where, there- 
 fore, an indictment for conspiracy contained some good and some bad 
 counts, and on some of the good counts there were bad findings, and 
 there was a judgment against each defendant that for 'his offences 
 aforesaid ' he should be imprisoned for a certain term, it was held by 
 the House of Lords that each count must be considered as charging a 
 separate offence, and that the terms ' his offences aforesaid ' must be 
 treated as extending to all the counts on which he had been found 
 guilty ; and as some of the counts and some of the findings were bad, 
 the judgment was altogether erroneous, (y) 
 
 Punishment. — In former times, persons convicted of a conspiracy at 
 the suit of the King to accuse another person of a capital offence, were 
 liable to receive what was called the villanous judgment, that is, to 
 
 (u) R. v. Yates, 6 Cox, C. C. 441. presumed that the court would do more than 
 
 Crompton, J., after consulting Coleridge, J. impose a sentence for the one offence. 
 See R. v. Hudson, Bell, C. C. 263, ante, (w) O'Connell v. R., 11 CI. & F. 155. 
 
 p. 506. (x) O'Counell v. R., 11 CI. & F. 155. 
 
 (») R. v. Gompertz, 9 Q. B. 824. It (y) Ibid, 
 
 should have been added that it must uot be
 
 chap, xxiv.] Of Conspiracy. 543 
 
 lose their liberam legem, whereby they were discredited and disabled 
 
 as jurors or witnesses ; to forfeit their goods and chattels and lands 
 for life ; to have those lands wasted, their houses razed, their trees 
 rooted up, and their bodies committed to prison, (s) But this judg- 
 ment was not inflicted upon those who were convicted only of con- 
 spiracies of a less aggravated kind, at the suit of the party : and for 
 some time past it appears to have been the better opinion, that the 
 villanous judgment is by long disuse become obsolete, not having been 
 pronounced for some ages ; and that the punishment for conspiracies 
 in general is, as in the case of other misdemeanors, by fine, imprison- 
 ment, and sureties for the good behaviour at the discretion of the 
 Court, (a) 
 
 By the 14 & 15 Vict. c. 100, s. 29, whenever any person shall be 
 convicted of any conspiracy to cheat or defraud, or to extort money or 
 goods, or falsely to accuse of any crime, or to obstruct, prevent, pervert, 
 or defeat the course of public justice, the Court may award imprison- 
 ment for any term now warranted by law, and hard labour during the 
 whole or any part of such imprisonment. 
 
 By the 24 & 25 Vict. c. 100, s. 4, provision is made for the pun- 
 ishment of conspiracies to murder. 
 
 In conclusion of this chapter, it may be mentioned, that after a con- 
 viction for a conspiracy, the defendants must be present in Court when 
 a motion is made on their behalf, in arrest of judgment, (d) And also 
 that upon a motion for a new trial, after such conviction, all the de- 
 fendants must be present, (e) And it is not a sufficient excuse for 
 absence, that they are in custody on civil process ; but if they were in 
 custody on criminal process, the case would be different, for then they 
 might be charged with the conspiracy also. (/) But where an indict- 
 ment has been removed into the Court of King's Bench, after verdict, 
 but before judgment, and set down for argument, it does not appear 
 to be necessary that the defendants should appear in Court upon the 
 argument, the proceeding being in the nature of a special verdict, and 
 the party not being considered as convicted, until after the Court have 
 determined upon the verdict, (g) A new trial cannot be granted as to 
 one conspirator without granting it as to all who are convicted, though 
 the ground on which the new trial is granted applies only to the one 
 conspirator, (h) But where some are acquitted and some convicted, a 
 new trial may be granted as to the latter, without disturbing the ver- 
 dict as to the former, (h) 
 
 (z) 1 Hawk. P. C. c. 72, s. 9. 4 Black, servant, who was aiding and assisting, was 
 
 Com. 136. sent to the house of correction to hard labour 
 
 (a) Id. ibid. The pillory was also very for six months ; Moore, the curate of the 
 
 commonly a part of the punishment until parish, and one James, were discharged on 
 
 such punishment was abolished by the 56 paying the prosecutor 300?. and his costs, 
 
 Geo. 3, c. 138. In a case where the defend- which were nearly as much more. Brown, 
 
 ants were convicted on an information for a who had published a narrative, and one Day, 
 
 conspiracy to take away the character of one the printer of a newspaper, had previously 
 
 Kempe, and accuse him of murder, by pre- made their peace with the prosecutor, 
 tended conversations and communications (d) K. v. Spragg, 2 Burr. 929. 1 Black, 
 
 with a ghost that answered by knocking and E. 209. 
 
 scratching in Cock-lane, &c, they received {e) R. v. Teal, 11 East, 307. R. v. 
 
 the following judgment : Richard Parsons Askew, 3 M. & S. 9. R. v. Lord Cochrane, 
 
 (the father of the child, who was the prin- 3 M. & S. 10. 
 
 cipal agent in the pretended communication), (/) R. v. Hollingberry, 4 B. & C. 329. 
 
 to stand thrice in the pillory, and be impri- 6 D. & R. 345. 
 soned two years ; Eliz. Parsons, the mother, (7) R. v. Nicholls, 2 Str. 1227. 
 
 to be imprisoned one year ; Mary Fraser, a (h) R. v. Gompertz, 9 Q. B. 824.
 
 544 Trades Unions. [book ii. 
 
 The Trade Union Act, 1871, and the Conspiracy and Protection of 
 Property Act, 1875. 1 
 
 The earlier statutes relating to the combination of workmen were 
 repealed by the 5 Geo. 4, c. 95. This Act was repealed by the 6 Geo. 
 4, c. 129, and other provisions were enacted in lieu thereof. This Act 
 was amended by subsequent Acts. All these Acts are now repealed 
 by 34 & 35 Vict. c. 32. 
 
 By "The Trade Union Act, 1871," (34 & 35 Vict. c. 31,) — (i) 
 
 Sec. 2. ' The purposes of any trade union shall not, by reason merely 
 that they are in restraint of trade, be deemed to be unlawful, so as to 
 render any member of such trade union liable to criminal prosecution 
 for conspiracy or otherwise.' (j) 
 
 Sec. 3. ' The purposes of any trade union shall not, by reason merely 
 that they are in restraint of trade, be unlawful so as to render void or 
 voidable any agreement or trust.' 
 
 Sec. 5. ' The following Acts, that is to say : — 
 
 (1) The Friendly Societies' Acts, 1855 and 1858, and the Acts 
 
 amending the same ; (k) 
 
 (2) The Industrial and Provident Societies' Act, 1867, and 
 
 any Act amending the same ; and 
 
 (3) The Companies' Acts, 1862 and 1867, 
 
 shall not apply to any trade union, and the registration of any trade 
 union under any of the said Acts shall be void, and the deposit of the 
 rules of any trade union made under the Friendly Societies' Acts, 
 1855 and 1858, and the Acts amending the same, before the passing 
 of this Act, shall cease to be of any effect. ' (/) 
 
 Sec. 6 provides for the registry of trade unions. 
 
 By Sec. 9. ' The trustees of any trade union registered under this Act, 
 or any other officer of such trade union who may be authorized so to do 
 by the rules thereof, are hereby empowered to bring or defend, or cause 
 to be brought or defended, any action, suit, prosecution, or complaint 
 in any court of law or equity touching or concerning the property, 
 right, or claim to property of the trade union, and shall and may in all 
 cases concerning the real or personal property of such trade union, sue 
 and be sued, plead and be impleaded, in any court of law or equity, in 
 their proper names, without other description than the title of their 
 office ; and no such action, suit, prosecution, or complaint shall be dis- 
 continued or shall abate by the death or removal from office of such 
 persons or any of them, but the same shall and may be proceeded in 
 
 (i) This Act is amended by 39 & 40 Vict. of a child under ten years of age, shall be 
 
 c. 22. deemed to be within the provisions of sec. 
 
 (j) See E. v. Bunn, 12 Cox, C. C. 316. 28 of the Friendly Societies Act, 1875. 
 
 \k) By 39 & 40 Vict. c. 22, s. 2, a trade (I) See Farrer v. Close, 38 L. J. M. C. 
 
 union, whether registered or unregistered, 132 ; see 38 & 39 Vict. c. 22. 
 which insures or pays money on the death 
 
 American Note. 
 
 1 In America it has been laid down that artificial excitement. C. v. Carlisle, Journ. 
 
 every association is criminal whose object is of Juris. 235; S. v. Donaldson, 3 Vroom, 
 
 to raise or depress the price of labour beyond 151. 
 what it would, bring if it were left without
 
 chap, xxiv.] Of Conspiracy. 545 
 
 by their successor or successors as if such death, resignation, or re- 
 moval had not taken place ; and such successors shall pay or receive 
 the like costs as if the action, suit, prosecution, or complaint had been 
 commenced in their names for the benefit of or to be reimbursed from 
 the funds of such trade union, and the summons to be issued to such 
 trustee or other officer may be served by leaving the same at the regis- 
 tered office of the trade union.' 
 
 Sec. 18. 'If any person with intent to mislead or defraud gives to 
 any member of a trade union registered under this Act, or to any per- 
 son intending or applying to become a member of such trade union, a 
 copy of any rules or of any alterations or amendments of the same 
 other than those respectively which exist for the time being, on the pre- 
 tence that the same are the existing rules of such trade union, or that 
 there are no other rules of such trade union, or if any person with the 
 intent aforesaid gives a copy of any rules to any person on the pre- 
 tence that such rules are the rules of a trade union registered under 
 this Act which is not so registered, every person so offending shall be 
 deemed guilty of a misdemeanor.' 
 
 Sec. 23. 'In this Act (m) the term ' trade union,' means such com- 
 bination, whether temporary or permanent, for regulating the relations 
 between workmen and masters, or between workmen and workmen, 
 or between masters and masters, or for imposing restrictive condi- 
 tions on the conduct of any trade or business, as would, if this Act 
 had not passed, have been deemed to have been an unlawful combi- 
 nation by reason of some one or more of its purposes being in restraint 
 of trade : Provided that this Act shall not affect — 
 
 1. Any agreement between partners as to their own business ; 
 
 2. Any agreement between an employer and those employed 
 
 by him as to such employment ; 
 
 3. Any agreement in consideration of the sale of the goodwill 
 
 of a business or of instruction in any profession, trade, or 
 handicraft.' 
 
 By the Conspiracy and Protection of Property Act, 1875 (38 & 39 
 Vict. c. 86), — 
 
 Sec. 3. ' An agreement or combination by two or more persons to 
 do or procure to be done any act in contemplation or furtherance of a 
 trade dispute between employers and workmen shall not be indictable 
 as a conspiracy if such act committed by one person would not be 
 punishable as a crime. 
 
 Nothing in this section shall exempt from punishment any persons 
 guilty of a conspiracy for which a punishment is awarded by any Act 
 of Parliament. 
 
 Nothing in this section shall affect the law relating to riot, unlaw- 
 ful assembly, breach of the peace, or sedition, or any offence against 
 the State or the Sovereign. 
 
 (m) By 39 & 40 Vict. c. 22, s. 16, so much or between masters and masters, or for im- 
 
 of the above 23rd section as defines the term posing restrictive conditions on the conduct 
 
 ' trade union,' except the proviso qualifying of any trade or business, whether such com- 
 
 such definition, is hereby repealed, and in bination would or would not, if the principal 
 
 lieu thereof be it enacted as follows : The Act had not been passed, have been deemed 
 
 term ' trade union ' means any combination, to have been an unlawful combination by 
 
 whether temporary or permanent, for regu- reason of some one or more of its purposes 
 
 lating the relations between workmen and being in restraint of trade, 
 masters, or between workmen and workmen, 
 vol. i. — 35
 
 546 Trades Unions. [book ii. 
 
 A crime for the purposes of this section means an offence punish- 
 able on indictment, or an offence which is punishable on summary 
 conviction and for the commission of which the offender is liable, 
 under the statute making the offence punishable, to be imprisoned 
 either absolutely or at the discretion of the Court, as an alternative 
 for some other punishment. 
 
 Where a person is convicted of any such agreement or combination 
 as aforesaid to do or procure to be done an act which is punishable 
 only on summary conviction, and is sentenced to imprisonment, the 
 imprisonment shall not exceed three months, or such longer time, if 
 any, as may have been prescribed by the statute for the punishment 
 of the said act when committed by one person.' 
 
 By Sec. 4. ' Where a person employed by a municipal authority or 
 by any company or contractor upon whom is imposed by Act of Parlia- 
 ment the duty, or who have otherwise assumed the duty of supplying 
 any city, borough, town, or place, or any part thereof, with gas or 
 water, wilfully and maliciously (n) breaks a contract of service with 
 that authority or company or contractor, knowing or having reason- 
 able cause to believe that the probable consequences of his so doing, 
 either alone or in combination with others, will be to deprive the 
 inhabitants of that city, borough, town, place, or part, wholly or to a 
 great extent of their supply of gas or water, he shall, on conviction 
 thereof by a court of summary jurisdiction or on indictment as herein- 
 after mentioned, be liable either to pay a penalty not exceeding twenty 
 pounds, or to be imprisoned for a term not exceeding three months, 
 with or without hard labour. 
 
 Every such municipal authority, company, or contractor as is men- 
 tioned in this section shall cause to be posted up, at the gasworks or 
 waterworks, as the case may be, belonging to such authority or com- 
 pany or contractor, a printed copy of this section in some conspicuous 
 place where the same may be conveniently read by the persons em- 
 ployed, and as often as such copy becomes defaced, obliterated, or 
 destroyed, shall cause it to be renewed with all reasonable despatch. 
 
 If any municipal authority or company or contractor make de- 
 fault in complying with the provisions of this section in relation to 
 such notice as aforesaid, they or he shall incur on summary convic- 
 tion a penalty not exceeding five pounds for every day during which 
 such default continues, and every person who unlawfully injures, 
 defaces, or covers up any notice so posted up as aforesaid in pursuance 
 of this Act, shall be liable on summary conviction to a penalty not 
 exceeding forty shillings. 
 
 By Sec. 5. ' Where any person wilfully and maliciously (o) breaks a 
 contract of service or of hiring, knowing or having reasonable cause to 
 believe that the probable consequences of his so doing, either alone or in 
 combination with others, will be to endanger human life, or cause serious 
 bodily injury, or to expose valuable property, whether real or personal, 
 to destruction or serious injury, he shall, on conviction thereof by a 
 court of summary jurisdiction or on indictment as hereinafter men- 
 tioned, be liable either to pay a penalty not exceeding twenty pounds, 
 or to be imprisoned for a term not exceeding three months, with or 
 without hard labour.' 
 
 (n) See sec. 15. (o) See sec. 15, post.
 
 chap, xxiv.] Of Conspiracy. 547 
 
 By Sec. 6. ' Where a master, being legally liable to provide for his 
 servant or apprentice necessary food, clothing, medical aid, or lodging, 
 wilfully and without lawful excuse refuses or neglects to provide the 
 same, whereby the health of the servant or apprentice is or is likely 
 to be seriously or permanently injured, he shall on summary convic- 
 tion be liable either to pay a penalty not exceeding twenty pounds, or 
 to be imprisoned for a term not exceeding six months, with or without 
 hard labour.' (p) 
 
 By Sec. 7. ' Every person who, with a view to compel (q) any other 
 person to abstain from doing or to do any act (r) which such other 
 person has a legal right to do or abstain from doing, wrongfully and 
 without legal authority, — 
 
 1 Uses violence to or intimidates (s) such other person or his wife 
 or children, or injures his property ; or, 
 
 2. Persistently follows {t) such other person about from place to 
 
 place ; or, 
 
 3. Hides any tools, clothes, or other property owned or used by 
 
 such other person, or deprives him of or hinders him in the 
 use thereof ; or, 
 
 4. Watches or besets the house or other place where such other 
 
 person resides, or works, or carries on business, or happens to 
 be, or the approach to such house or place ; (w) or 
 
 5. Follows such other person with two or more other persons in 
 
 a disorderly manner in or through any street or road, 
 shall, on conviction thereof by a court of summary jurisdiction or on 
 indictment as hereinafter mentioned, be liable either to pay a penalty 
 not exceeding twenty pounds, or to be imprisoned for a term not 
 exceeding three months, with or without hard labour. Attending at 
 or near the house or place where a person resides, or works, or carries 
 on business, or happens to be, or the approach to such house or place, 
 in order merely to obtain or communicate information, shall not be 
 deemed a watching or besetting within the meaning of this section.' (v) 
 
 By Sec. 8. ' Where in any Act relating to employers or workmen a 
 pecuniary penalty is imposed in respect of any offence under such 
 Act, and no power is given to reduce such penalty, the justices or 
 court having jurisdiction in respect of such offence may, if they think 
 it just so to do, impose by way of penalty in respect of such offence 
 any sum not less than one fourth of the penalty imposed by such 
 Act.' 
 
 By Sec. 9. •' Where a person is accused before a Court of summary 
 
 (p) As to liability of a master to provide (t) As to what is persistently following 
 
 food, &c, for servant or apprentice, see see Smith v. Thomasson, 16 Cox", C. C. 740. 
 
 post. (u) This is what is known as ' picket- 
 
 (q) See R. v. Hibbert, 13 Cox, C. C. 82, ing.' See E. v. Druitt, 10 Cox, C. C. 593 ; 
 
 where it was laid down by Cleasby, B., that R. v. Hibbert, supra. 
 
 if picketing were carried on with the inten- (».) See R. v. Bonn, 12 Cox, C. C. 316 ; 
 
 tion to coerce, and in such a manner and to R. v. Shepherd, 11 Cox, C. C. 325. It is 
 
 such an extent as to excite apprehension and lawful for workmen, peaceably and in a 
 
 annoyance, it was criminal. See also per reasonable and proper manner, to endeavour 
 
 Huddleston, B., in R. v. Bauld, 13 Cox, 282. to persuade other workmen who have not 
 
 (?•) The acts must it seems be specified acted with them, to do so. They must not 
 
 in the indictment. R. v. McKenzie (1892), infringe the provisions of this enactment, 
 
 2 Q. B. 519. see R. v. Druitt, 10 Cox, C. C. 593, per 
 
 (s) As to the meaning of this word, see Bramwell, B. See however as to these cases 
 
 Gibson v. Lawson, post. Gibson v. Lawson, post, p. 54S.
 
 548 Trades Unions. [book ii. 
 
 jurisdiction of any offence made punishable by this Act, and for which 
 penalty amounting to twenty pounds, or imprisonment, is imposed, 
 the accused may, on appearing before the Court of summary jurisdic- 
 tion, declare that he objects to being tried for such offence by a Court 
 of summary jurisdiction, and thereupon the Court of summary juris- 
 diction may deal with the case in all respects as if the accused were 
 charged with an indictable offence and not an offence punishable on 
 summary conviction, and the offence may be prosecuted on indictment 
 accordingly.' 
 
 By Sec. 11. 'Provided, that upon the hearing and determining of 
 any indictment or information under sections four, five, and six of this 
 Act, the respective parties to the contract of service, their husbands 
 or wives, shall be deemed and considered as competent witnesses.' (w) 
 
 By Sec. 15. ' The word ' maliciously ' used in reference to any offence 
 under this Act shall be construed in the same manner as it is required 
 by the 24 & 25 Vict. c. 97, s. 58, (x) to be construed in reference to 
 any offence committed under such last-mentioned Act.' 
 
 By Sec. 16. 'Nothing in this Act shall apply to seamen or to 
 apprentices to the sea service.' 
 
 The meaning of intimidation under this Act has been very fully 
 discussed by the Court for Crown Cases Reserved, in three cases which 
 recently came before them, and in which the judgment of the Court 
 (Lord Coleridge, C. J., Mathew, Cave, A. L. Smith, and Charles, JJ.) 
 was delivered by Lord Coleridge, C. J. 
 
 In Gibson v. Lawson (1891, 2 Q. B. 545), Lord Coleridge, C„ J., said : 
 ' The respondent was employed as a titter in the yard of an iron ship- 
 building company , the appellant was employed in the same capacity 
 in the same yard. The respondent was a member of a society called 
 the Amalgamated Society ; the appellant a member of a society called 
 the National Society. On Dec. 3, 1890, a meeting of the Amalga- 
 mated Society was held, at which it was resolved that the members 
 of that society would strike unless the appellant left his society and 
 joined theirs. The respondent commuuicated this resolution to the 
 foreman of the shipbuilding company, who communicated it to the 
 appellants. Thereupon the appellant had an interview with the 
 respondent. In the result the respondent informed the appellant that 
 the Amalgamated Society were determined to carry their resolution 
 into effect, but gave him till the morning of Saturday, December 6th, 
 to make up his mind. The appellant adhered to his own society, and 
 the shipbuilding company, in order to avoid a strike, dismissed him 
 from their yard. It is expressly found in the case that no violence or 
 threats of violence to person or property were used to the appellant, 
 but he swore that he "was afraid because of what the respondent 
 had said that he would lose work, and would not get employment 
 anywhere where the Amalgamated Society predominated numerically 
 over his own society." These are the whole of the material facts, and 
 on these facts the magistrates dismissed the summons, and we think 
 rightly. 
 
 ' The summons was issued under 38 & 39 Vict. c. 86, s. 7. The third 
 
 (w) As to a husband or wife being incom- (x) The Act relates to malicious injuries 
 
 petent as a witness for or against each other, to property. 
 see Vol. III., Evidence.
 
 chap, xxiv.] Of Conspiracy. 549 
 
 section of that Act distinctly legalizes strikes in the broadest terras, 
 subject to the exceptions enumerated in the fourth and fifth sections, 
 which immediately follow, and are almost in the nature of provisos 
 upon the third. The sixth section is on a subject altogether alien 
 from the present question ; and then comes the seventh, upon which we 
 have to decide. It is true that the Act before us is one of a series of 
 Acts dealing with subjects the same as or cognate to those dealt with 
 in the Act itself. Many of these are expressly repealed by the sev- 
 enteenth section, and amongst them 34 & 35 Vict. c. 32, is wholly 
 repealed. The Act 34 & 35 Vict. c. 32, was passed in 1871, after 
 therefore the charge to the jury by the present Lord Bramwell, in 
 B. v. Druitt, 10 Cox, C. C. 592, which was in 1867. 
 
 'Whether the Act was produced by the charge it is profitless 
 to inquire. The last proviso of the first section is plainly incon- 
 sistent with the charge, and still more inconsistent with the lan- 
 guage of Crompton and Hill, JJ., who, in Hilton v. Eckersley, 6 E. & 
 S. 47, and Walsby v. Anley, 30 L. J. M. C. 121, had the one declared 
 and the other suggested that strikes were per se criminal at common 
 law ; and still further with the somewhat rhetorical language of Sir 
 William Erie, who describes a strike as " the power of evil in remorse- 
 less activity, destroying those relations between employers and em- 
 ployed on which comfort and peace depend, bringing guilt and misery 
 on the workmen and ruin on their employers " (Erie on Trade Unions, 
 p. 85). The statute 34 & 35 Vict. c. 32, is not indeed conceived in any 
 weak spirit of tenderness to workmen, but the second subsection of 
 the first section limits "intimidation" in that subsection to such 
 intimidation as would justify a magistrate in binding over the intimi- 
 dator to keep the peace towards the person intimidated, — in other 
 words, to such intimidation as implies a threat of personal vio- 
 lence. Of such intimidation there is in this case no evidence what- 
 ever ; but it is truly said that this statute is repealed, and is of 
 importance only so far as its objects and language may throw light 
 upon the existing statute, under which this summons was issued. It 
 seems clear, however, that, looking at the course of legislation, and 
 keeping in mind the changing temper of the times on this subject, the 
 word " intimidate " in the seventh section of the later Act cannot 
 reasonably be construed in a wider and severer sense than the same 
 word in the second subsection of the first section of the earlier Act. 
 "Intimidate" is not, as has been often said by judges of authority, a 
 term of art ; it is a word of common speech and every-day use, and it 
 must receive therefore a reasonable and sensible interpretation, accord- 
 ing to the circumstances of the cases as they arise from time to time. 
 We do not propose to attempt an exhaustive definition of the word, 
 nor a complete enumeration of the cases to which it may be properly, 
 nor of those to which it may be improperly applied. It is enough for 
 us to say that in this case it appears to us all that there was nothing 
 which, under any reasonable construction of the word " intimidate," 
 could be brought within it. Whether the action of the Amalgamated 
 Society was morally right or not is a matter on which we express no 
 opinion, because it is not the question before us. It seems to us tbat 
 it was not illegal, within the words of the Act of Parliament under 
 which the summons was issued. This, however, does not entirely dis-
 
 550 Trades Unions. [book ii. 
 
 pose of the question, for we were very properly reminded of the cases 
 of R. v. Druitt, 10 Cox, C. C. 592, and R v. Bunn, 12 Cox,C. C. 316, in 
 which Lord Bramwell and Lord Esher (then Bramwell, B., and Brett, 
 J.) are both said to have held that the statutes on the subject have in 
 no way interfered with or altered the common law, and that strikes 
 and combinations expressly legalized by statute may yet be treated as 
 indictable conspiracies at common law, and may be punished by im- 
 prisonment with hard labour. Neither of those cases is very satisfac- 
 torily reported ; in neither was there any motive for questioning the 
 dicta of the judges : in the one tried by Lord Esher there was no op- 
 portunity, in consequence of the prisoner having been acquitted on all 
 the counts to which the alleged ruling applied. We are well aware of 
 the great authority of the judges by whom the above cases were de- 
 cided, but we are unable to concur in these dicta, and, speaking with 
 all deference, we think they are not law. It seems to us that to hold 
 that the very same acts which are expressly legalized by statute re- 
 main nevertheless crimes punishable by the common law is contrary 
 to good sense and elementary principle, and that the reports therefore 
 cannot be correct. If the dicta are law, they render the statutes 
 passed on these subjects practically inoperative ; these statutes might 
 as well not have been passed. The dicta are criticised in detail, and 
 with great ability, in Wright, J.'s., excellent work on the law of Criminal 
 Conspiracies and Agreements, pp. 50-59. It is difficult to withhold 
 assent from the statements and reasonings contained in those pages, 
 and it seems to us that the law concerning combinations in reference 
 to trade disputes is contained in 38 & 39 Vict. c. 86, and in the statutes 
 referred to in it, and that acts which are not indictable under that 
 statute are not now, if indeed they ever were, indictable at common 
 law. There remains to be considered only the case of Curran v. Tre- 
 leavcn, in which the Eecorder of Plymouth affirmed the conviction by 
 magistrates, who had convicted the secretaries of three trades unions 
 in Plymouth for having intimidated Mr. Treleaven, a shipowner in 
 that town, within the meaning of the Act 38 & 39 Vict. c. 86, s. 7, 
 subs. 1. The circumstances were very much like those in the last case 
 on which we have just decided. In order to prevent the employment 
 by Mr. Treleaven of non-union men, the three secretaries told him that 
 if he did not cease to employ non-union men, they would call off from 
 their employment by him all the members of their respective unions. 
 Mr. Treleaven refused compliance with their demands, and thereupon 
 the secretaries called off their respective union men, who in obedience 
 to the call struck work. The facts are stated to us as follows by the 
 learned Eecorder, in the case which he has submitted to us : " On 
 October the 14th there was a meeting of the union, at which it was 
 resolved to adopt the course which the defendants had stated at their 
 interview would be adopted, and accordingly on the 15th the defend- 
 ants, in the presence of Mr. Treleaven, whom they had asked to attend, 
 made the following statement to Mr. Treleaven's workmen and others, 
 who were assembled at the wharf : ' Inasmuch as Mr. Treleaven still 
 insists on employing non-union men, we, your officials, call upon all 
 union men to leave their work. Use no violence, use no immoderate 
 language, but quietly cease work and go home.' The orders thus 
 given were obeyed, and the union men who were unloading Mr.
 
 chap, xxiv.] Of Conspiracy. 551 
 
 Treleaven's ships immediately ceased unloading them, although they 
 had not completed the work that they were under contract to per- 
 form." He also found, amongst other facts, or rather he has expressed 
 his opinion upon the two following facts or points in these words 
 (amongst other points not necessary to be considered with reference 
 to the particular question of intimidation) : " That the defendants 
 did not desire or intend that any violence should be used or injury done 
 to Mr. Treleaven or his property ; that it was not proved that their 
 words or acts were calculated directly to cause any such violence or 
 injury, although I am of opinion that Mr. Treleaven was not unrea- 
 sonably afraid that such violence or injury might occur from the action 
 of the members of the unions in consequence of the strike, but against 
 the wishes and intentions of the defendants ; that the defendants had 
 no ill will against Mr. Treleaven personally, but acted with the object 
 of obliging all the labourers to join the unions as a means of getting 
 employment, and of obtaining for the members of the unions a 
 monopoly of the labour of the port." He held, as the result of a very 
 careful and able examination of the statutes and authorities, that the 
 facts above stated constituted intimidation within the words of the 
 section, and that the appellants were properly convicted by the magis- 
 trates of intimidating. We are unable to agree with him, as we said 
 in an earlier part of the judgment. We do not propose to enter upon 
 an exhaustive enumeration of all the possible acts which do and of 
 those which do not constitute intimidation within the section ; but 
 we say that to tell an employer that if he employs workmen of a 
 certain sort, the workmen of another sort in his employ will be told 
 to leave him, and tell the men when the employer will not give way 
 to leave their work, use no violence, use no immoderate language, but 
 quietly cease to work and go home (we quote the words of the 
 Eecorder), is certainly not intimidation within any reasonable sense 
 of the statute. 
 
 ' Two further observations are necessary in order to make our judg- 
 ment complete and effective. We do not think that the legislature 
 intended, by the change of words in the first subsection of the seventh 
 section of 38 & 39 Vict. c. 86, to send the Courts back to 6 Geo. 4, 
 c. 129, for an interpretation of the word " intimidate," although the 
 later statute did repeal 34 & 35 Vict. c. 32, which limited intimidation 
 to cases which would justify a magistrate in binding over the party 
 to keep the peace. There is indeed much to be said for the view en- 
 tertained by my learned brother Cave, and acted upon by him (as 
 mentioned by the Eecorder in his judgment), in a case tried before 
 him at Liverpool, namely, that "intimidation" in 38 & 39 Vict. c. 86, 
 must still be limited to threats of personal violence as enacted by 34 
 & 35 Vict. c. 32. It may become necessary to decide this point in 
 time to come ; it is not now, and we confine ourselves to the negative 
 statement that 6 Geo. 4, c. 129, is not now on this subject the govern- 
 ing statute. The other point is this : The Eecorder held that, though 
 an agreement to strike to benefit themselves would be now a lawful 
 agreement, a strike which would have the effect of injuring an em- 
 ployer is illegal, and indictable at common law. He cites in support 
 of his view, some phrases from the judgments of the Lords Justices 
 in the case of the Mogul Steamship Co. v. McGregor and others, 23 Q.
 
 552 Trades Unions. [book ii. 
 
 B. D. 598, but, with deference, he has somewhat misapprehended the 
 point of these observations. It is true that where the object is injury, 
 if the injury is effected an action will lie for the malicious conspiracy 
 which has effected it ; and therefore it may be indictable. But it was 
 pointed out in some detail by the Court of first instance that where 
 the object is to benefit oneself, it can seldom, perhaps it can never, be 
 effected without some consequent loss or injury to some one else. In 
 trade, in commerce, even in a profession, what is one man's gain is 
 another's loss ; and where the object is not malicious the mere fact 
 that the effect is injurious does not make the agreement either illegal 
 or actionable, and therefore it is not indictable. The Kecorder finds 
 that there was no malice in fact ; and this finding is inconsistent with 
 the conclusion that the agreement was either criminal or unlawful. 
 For these reasons we are of opinion that the judgment of the Becorcler 
 cannot be sustained, that it must accordingly be reversed, and the 
 conviction quashed.' 
 
 Some cases upon the repealed statutes will be found in the appendix 
 at the end of this volume.
 
 CHAPTER THE TWENTY- FIFTH. 
 
 OF RIOTS, ROUTS, AND UNLAWFUL ASSEMBLIES. 
 
 The distinction between these offences appears to be, that a riot 
 is a tumultuous meeting of persons upon some purpose which they 
 actually execute with violence ; a rout is a similar meeting upon a 
 purpose which, if executed, would make them rioters, and which 
 they actually make a motion to execute; and an unlawful assembly 
 is a mere assembly of persons upon a purpose which, if executed, 
 would make them rioters, but which they do not execute nor make 
 any motion to execute, (a) These offences may be treated of more at 
 large in the order in which they have been mentioned. 
 
 Riot. — I. A riot is described to be a tumultuous disturbance of 
 the peace by three persons or more, 1 assembling together of their own 
 authority, with an intent mutually to assist one another against any 
 who shall oppose them in the execution of some enterprise of a pri- 
 vate nature, and afterwards actually executing the same, in a violent 
 and turbulent manner, to the terror of the people, whether the act 
 intended were of itself lawful or unlawful, (b) 2 
 
 (a) 1 Hawk. P. C. c. 65, ss. 1, 8, 9. 3 
 Inst. 176. 4 Black. Com. 146. 
 
 (b) I Hawk. P. C. c. 65, s. 1. Three 
 persons or more is the correct description of 
 the number of persons necessary to constitute 
 a riotous meeting ; but it should be observed, 
 that in Hawkins (c. 65, ss. 2, 5, 7) the words 
 ' more than three persons ' are three times 
 over inserted instead of 'three persons or 
 more ; ' which in Barn's Just. tit. Riot, s. 1, 
 is remarked as an instance that, in a variety 
 of matter, it is impossible for the mind of 
 man to be always equally attentive. The 
 description of riot stated in the text, and 
 taken from the work of Mr. Serjeant Hawk- 
 ins, is submitted as that which would 
 
 probably be deemed most correct at the 
 present time. It should be observed, how- 
 ever, that riot has been described differently 
 by high authority. In R. v. Solev anil 
 others, 11 Mod. 116, Holt, C. J., sahh 'The 
 books are obscure in the definition of riots. 
 I take it, it is not necessary to say they 
 assembled for that purpose, but there must 
 be an unlawful assembly ; and as to what act 
 will make a riot, or trespass, such an act as 
 will make a trespass will make a riot. If a 
 number of men assemble with arms, in ter- 
 rorem populi, though no act is done, it is a 
 riot. If three come out of an alehouse, and 
 go armed, it is a riot.' See also R. v. Cun- 
 ninghame-Graham, 16 Cox, C. C. 420. 
 
 American Notes. 
 
 1 In Indiana, Illinois, and Georgia, riots 
 are defined by statutes not greatly differing 
 from the common-law definition. In Illinois 
 and Georgia, however, two can make a riot. 
 It was also held that two white men and a 
 negro could make a riot. S. v. Jackson, 1 
 Speers, 13 ; S. v. Thackham, 1 Bav, 358 ; 
 S. v. Calder, 2 McCord, 462, and probably 
 two men and the wife of one may make a 
 riot, though the point has not been decided. 
 Bishop, ii. s. 1144. Where two out of three 
 were inactive it seems there could be no riot. 
 Scott v. IT. S., Morris, 142; Hardebeck v. 
 S., 10 Ind. 459 ; S. v. Kuhman, 5 Mo. Ap. 
 587 ; but in Maine it was decided that where 
 
 two are active and one only present and 
 abetting, there was a riot. S. v. Straw, 33 
 Me. 554. It seems that to constitute :l 
 " rout " or an "unlawful assembly" three 
 at least must be present. Bishop, ii. ss. 1186, 
 1256. 
 
 2 See C. v. Runnells, 10 Mass. 518 ; P. 
 v. Craig, Addis. 191 ; Hardebeck v. S., 10 
 Ind. 459 ; C. v. Gebney, 2 Allen, 150. 
 The act of the rioters need not be the ful- 
 filment of an unlawful purpose. S. v. 
 Blair, 13 Rich. (Law) 93, nor need they 
 carry out their intentions. Newby v. T., 
 1 Oregon, 163.
 
 554 Riots, Routs, and Unlawful Assemblies. [book ii. 
 
 In some cases, in which the law authorizes force, it is not only 
 lawful, but also commendable, to make use of it ; as for a sheriff or 
 constable, or perhaps even for a private person, to assemble a com- 
 petent number of people in order with force to suppress rebels, or 
 enemies, or rioters ; and afterwards with such force actually to sup- 
 press them ; or for a justice of peace, who has a just cause to fear a 
 violent resistance, to raise the posse, in order to remove a force in 
 making an entry into, or detaining of, lands. Also it seems to be the 
 duty of a sheriff, or other minister of justice, having the execution of 
 the King's writs, and being resisted in endeavouring to execute them, 
 to raise such a power as may effectually enable them to overpower any 
 such resistance ; yet it is said not to be lawful for them to raise a force 
 for the execution of a civil process, unless they find a resistance ; and 
 it is certain that they are highly punishable for using any needless 
 outrage or violence, (c) 
 
 It seems to be agreed, that the injury or grievance complained of, 
 and intended to be revenged or remedied by a riotous assembly, must 
 relate to some private quarrel only ; as the enclosing of lands in which 
 the inhabitants of a town claim a right of common, or gaining the 
 possession of tenements the title whereof is in dispute, or such like 
 matters relating to the interests or disputes of particular persons, in 
 no way concerning the public. The proceedings of a riotous assembly 
 on a public or general account, as to redress grievances, pull down 
 all inclosures, or to reform religion, and also resisting the King's 
 forces, if sent to keep the peace, may amount to overt acts of high 
 treason by levying war against the King, (rf) 
 
 It seems to be clearly agreed that in every riot there must be 
 some such circumstances either of actual force or violence, or at least 
 of an apparent tendency thereto, as are naturally apt to strike a terror 
 into the people ; as the show of armour, threatening speeches, or tur- 
 bulent gestures ; for every such offence must be laid to be done in ter- 
 rorem populi. (c) But it is not necessary, in order to constitute this 
 crime, that personal violence should have been committed. (/) If 
 sufficient force be used to terrify a single person, it is enough, though 
 no other persons are near enough to be within reach of the alarm. 
 Four persons went to a cottage, in which was one old man ; one of 
 them began to knock down the end of the cottage with an axe, and 
 knocked part of the woodwork against the old man ; he then caught 
 the old man by the collar, and said, ' Come, you must go out of the 
 house,' and he did go out, and the prisoners pulled the house to the 
 ground, except the chimney ; the jury were told that if such force 
 was used by the four prisoners as to terrify the old man, they might 
 find that there was a riot, and this direction was held right. (<j) 
 
 Upon these principles, assemblies at wakes, or other festival times, 
 or meetings for the exercise of common sports or diversions, as bull- 
 baiting, wrestling, and such like, are not riotous. (Ji) And upon the 
 
 (c) 1 Hawk. P. C. c. 65, s. 2. 19 Vin. (q) R. v. Phillips, 2 M. C. C. 252. S. C. 
 
 Abr. tit. Riots, <L-c. (A.) 4. as R. v. Langford, C. & M. 602. 
 
 (<J) 4 Black. Com. 147. 1 Hawk. P. C. (h) 1 Hawk. P. C. c. 65, s. 5. But see 
 
 c. 65, s. 6. in 2 Chit. Crim. L. 494, an indictment said 
 
 (e) 1 Hawk. P. C. c. 65, s. 5. to have been drawn in the year 1797, by a 
 
 (/) Per Mansfield, C. J., in Clifford v. very eminent pleader, for the purpose of 
 
 Brandon, 2 Campb. 369. suppressing an ancient custom of kicking
 
 chap, xxv.] Riots, Routs, and Unlawful Anne nth lies. 555 
 
 same ground also it seems to follow that it is possible for three persons 
 or more to assemble together with an intention to execute a wrongful 
 act, and also actually to perforin their intended enterprise, without 
 being rioters ; as if a man assemble a number of persons to carry away 
 a piece of timber or other thing to which he claims a right, and which 
 cannot be carried away without a number of persons, this will not of 
 itself be a riot, if the number of persons are not more than are neces- 
 sary for the purpose ; and if there are no threatening words used, nor 
 any other disturbance of the peace ; even though another man has 
 better right to the thing carried away, and the act therefore is wrong 
 and unlawful, (i) Where on an indictment for a riot it appeared that 
 two men were fighting amidst a great crowd, and that some persons 
 were aiding and assisting ; but on some peace officers appearing the 
 fight ceased, and the fighters quietly yielded to the officers : Alderson, 
 B., held that this was not a riot, (j) Much more may any person, in 
 a peaceable manner, assemble a fit number of persons to do any lawful 
 thing ; as to remove any common nuisance, or any nuisance to his own 
 house or land. And he may do this before any prejudice is received 
 from the nuisance, and may also enter into another man's ground for 
 the purpose. Thus, where a man having erected a weir across a com- 
 mon navigable river, divers persons assembled with spades and other 
 instruments necessary for removing it, and dug a trench in the land 
 of the man who made the weir in order to turn the water and the 
 better to remove it, and thus removed the nuisance, it was holden not 
 to be a forcible entry nor a riot. (&) 
 
 But if there be violence and tumult, it makes no difference whether 
 the act intended to be done by the persons assembled be of itself 
 lawful or unlawful, from whence it follows that if three or more 
 persons assist a man to make a forcible entry into lands to which one 
 of them has a good right of entry ; or if the like number, in a violent 
 and tumultuous manner, join together in removing a nuisance or other 
 thing, which may be lawfully done in a peaceable manner, they are 
 as properly rioters as if the act intended to be done by them were 
 ever so unlawful. (/) And if in removing a nuisance the persons 
 assembled use any threatening words (such as, they will do it though 
 they die for it, or the like,) or in any other way behave in apparent 
 disturbance of the peace, it seems to be a riot, (to) If a large body 
 of men assemble themselves together for the purpose of obtaining any 
 particular end, and conduct themselves in a turbulent manner, either 
 accompanied with acts of violence, or with threats and intimidation 
 calculated to excite the terror and alarm of the Queen's subjects, this is 
 
 about foot-balls on a Shrove-Tuesday, at fill assembly and riot, for which they may 
 
 Kingston-upon-Thames. The first count is be indicted and fined. 19 Vin. Abr. tit. 
 
 for riotously kicking about a foot-ball in the Riots, &c. (A.) 8. 
 
 town of Kingston ; and the second, for a (i) 1 Hawk. P. C. c. 65, s. 5. R. i\ 
 
 common nuisance in kicking about a foot- Soley, 11 Mod. 117. Dalt. c. 137. Burn's 
 
 ball in the said town. And in Sir Antony Just. tit. Riots, s. 1. 
 
 Ashley's case, 1 Roll. R. 109, Coke, C. J., (j ) R. v. Hunt, 1 Cox, C. C. 177. 
 
 said that the stage-players might be indicted (k) Dalt. c. 137. Burn, tit. Riot, s. 1. 
 
 for a riot and unlawful assembly; and see (I) 1 Hawk. P. C. c. 65, s. 7, per cur. 
 
 Dalt. Just. c. 136, (citing Roll.*R.) that if in 12 Mod. 648, Anon. R. v. Hughes, M. 
 
 such players, by* their shows occasion an ex- & M. 178, note (a). 
 
 traordinary and unusual concourse of people (m) Dalt. c. 137. Burn's Just. tit. Riot, 
 
 to see them act their tricks, this is an unlaw- s. 1.
 
 556 Riots, Routs, and Unlawful Assemblies. [book ii. 
 
 in itself a riot, whether the end and object proposed be a just and 
 legitimate one or not. (n) 
 
 But the violence and tumult must in some degree be premeditated. 1 
 For if a number of persons, being met together at a fair, market, or auy 
 other lawful or innocent occasion, happen on a sudden quarrel to fall 
 together by the ears, it seems to be agreed that they are not guilty of 
 a riot, but only of a sudden affray, of which none are guilty but 
 those who actually engage in it ; because the design of their meeting 
 was innocent and lawful, and the subsequent breach of the peace 
 happened unexpectedly, without any previous intention, (o) But if 
 there be any predetermined purpose of acting with violence and 
 tumult, the conduct of the parties may be deemed riotous. As where 
 it was held that, although the audience in a public theatre have a 
 right to express the feelings excited at the moment by the perform- 
 ance, and in this manner to applaud or to hiss any piece which is 
 represented, or any performer who exhibits himself on the stage ; yet 
 if a number of persons, having come to the theatre with a predeter- 
 mined purpose of interrupting the performance, for this purpose make 
 a great noise and disturbance, so as to render the actors entirely 
 inaudible, though without offering personal violence to any individual, 
 or doing any injury to the house, they are guilty of a riot, (p) 
 
 Even though the parties may have assembled for an innocent purpose 
 in the first instance, yet if they afterwards, upon a dispute happening 
 to arise amongst them, form themselves into parties, with promises of 
 mutual assistance, and then make an affray, it is said that they are 
 guilty of a riot, because upon their confederating together with an in- 
 tention to break the peace, they may as properly be said to be assem- 
 bled together for that purpose from the time of such confederacy, as if 
 their first coming had been on such a design ; 3 and it seems to be clear 
 that if in an assembly of persons met together on any lawful occasion 
 whatsoever, a sudden proposal should be started of going together in a 
 body to pull down a house, or inclosure, or to do any other act of vio- 
 lence, to the disturbance of the public peace, and such motion be agreed 
 to, and executed accordingly, the persons concerned cannot but be 
 rioters ; because their associating themselves together, for such a new 
 purpose, is in no way extenuated by their having met at first upon 
 another, (q) 
 
 If any person seeing others actually engaged in a riot, joins himself 
 to them and assists them therein, he is as much a rioter as if he had 
 
 (11) Per Tindal, C. J., in his charge to the See Gregory v. the Duke of Brunswick, 6 M. 
 
 Stafford grand jury, A. D. 1842, C. & M. & G. 953. 3 C. B. 481. 1 C. & K. 24. R. 
 
 661. v. Leigh, Ann. Reg. for 1775, p. 117. 2 
 
 (o) 1 Hawk. P. C. c. 65, s. 3. (q) 1 Hawk. P. C. c. 65, s. 3. See R. v. 
 
 (p) Clifford v. Brandon, 2 Campb. 358. Burns, 16 Cox, C. C. 355. 
 
 American Notes. 
 
 1 Mr. Bishop, Vol. ii. s. 1152 says it is a 3 It seems to have been thought that 
 mistake to say that the tumult must be pre- before there can be a riot there must be an 
 meditated, and it is contrary to American unlawful assembly to begin with, S. v. 
 authority, P. v. Judson, 11 Daly, X. Y.; Stalcup, 1 Ire. 30,*35 Am. D. 772 ; but this 
 and persons may commit a riot though only is not so now in America any more than in 
 intending a frolic. S. v. Alexander, 7 England. S. v. Cole, 2 McCord, 117 ; S. v. 
 Rich. 5. Snow, 18 Me. 346. 
 
 2 See Bishop, ii. s. 308, note 6.
 
 chap, xxv.] Riots, Routs, and Unlawful Assemblies. 557 
 
 at first assembled with them for the same purpose, inasmuch as he has 
 no pretence that he came innocently into the company, but appears 
 to have joined himself to them with an intention of seconding them 
 in the execution of their unlawful enterprise; 1 and it would be end- 
 less, as well as superfluous, to examine whether every particular per- 
 son engaged in a riot were in truth one of the first assembly, or 
 actually had a previous knowledge of the design, (V) And the law is 
 that if any person encourages, or promotes, or takes part in riots, 
 whether by words, signs, or gestures, or by wearing the badge or 
 ensign of the rioters, he is himself to be considered a rioter ; for in 
 this case all are principals, (s) It has been ruled, however, that if 
 three or more, being lawfully assembled, quarrel, and the party fall on 
 one of their own company, this is no riot; but that if it be on a 
 stranger, the very moment the quarrel begins, they begin to be an 
 unlawful assembly, and their concurrence is evidence of an evil inten- 
 tion in them that concur, so that it is a riot in them that act, and in 
 no more, (t) The inciting persons to assemble in a riotous manner 
 appears also to have been considered as an indictable offence, (it) 
 
 The defendants were charged in an indictment ' that they at Tra- 
 falgar Square with great numbers of other persons assembled and met 
 together, and that they being wicked, malicious and seditious persons, 
 wickedly, maliciously and seditiously contriving and intending the 
 peace of our said lady the Queen, and of this realm, and of the liege 
 subjects of our said lady the Queen, to disquiet and disturb, and the 
 liege subjects of our said lady the Queen, to incite and to move to 
 contempt, hatred, and dislike of the government established by law 
 within this realm, and to incite and to move and persuade great num- 
 bers of the liege subjects of our said lady the Queen, to insurrections, 
 riots, tumults, and breaches of the peace, and to stir up jealousies, 
 hatred, and ill-will between different classes of the said liege subjects, 
 and to prevent by force and arms the execution of the laws of this 
 realm and the preservation of the public peace, on the day and in the 
 year aforesaid, in the presence and hearing of divers of the liege sub- 
 jects of our Lady the Queen, to wit, the persons assembled together 
 as aforesaid in Trafalgar Square as aforesaid and within the juris- 
 diction of the said court, in a certain speech and discourse by him 
 the said John Burns, then addressed to the said liege subjects so then 
 assembled together as aforesaid, unlawfully, wickedly, maliciously, and 
 seditiously, openly, and publicly did publish, utter, pronounce, and de- 
 
 (r) Id. ibid. (u) See a precedent, Cro. Circ. Comp. 
 
 (s) By Mansfield, C. J., in Clifford v. 420 (8th edit.), the first count of which is 
 
 Brandon, 2 Campb. 370. And see R. v. for inciting persons to assemble, and tbat in 
 
 Royce, 4 Burr. 2073, and the second and consequence of such incitement they did so ; 
 
 third resolution in the Sissinghurst house and the second count states the inciting, 
 
 case, 1 Hale, 463. R. v. Sharpe, 3 Cox, C. and omits the assembling in consequence of 
 
 C. 288. R. v. Atkinson, 11 Cox, C. C. 330. it. See a similar precedent in 2 Chit. Crim. 
 
 (t) 19 Viu. Abr. tit. Riots, dkc. (A. ) 15. L. 506, and the principles stated, ante, 
 
 R. v. Ellis, 2 Salk. 595. p. 195, et seq? 
 
 American Notes. 
 
 1 See S. v. M'Bride, 19 Mo. 239. See pressing the riot will not render a person 
 also Bishop i. s. 632. guilty of a riot. Pennsylvania v. Craig, 
 
 2 Mere presence and not assisting in sup- Addison, 190 ; S. v. McBride, 19 Mo. 239.
 
 558 Riots, Eovis, and Unlawful Assemblies. [book ii. 
 
 clare, and cause to be published, uttered, pronounced, and declared, 
 with a loud voice of and concerning the government as established by 
 law within this realm, and of and concerning the Commons House of 
 Parliament, and the members thereof, and of and concerning divers 
 liege subjects of our said lady the Queen, whose names are to the 
 jurors aforesaid unknown, amongst other words and matters, the false, 
 wicked, seditious, and inflammatory words and matter following, that is 
 to say : [The words complained of were here set out] against the 
 peace of our lady the Queen, her crown and dignity.' 
 
 Another count charged the defendants with a conspiracy to speak 
 seditious words and incite to sedition. 
 
 Cave, J., in charging the jury, said: ' It is now my duty to explain 
 to you the rules of law which ought to govern you in considering this 
 case, and also to summarise shortly for your benefit the evidence which 
 has been given, so that you may have the less difficulty in applying 
 the principles of the law to that evidence. There is undoubtedly no 
 question at law of the right of meeting in public, and the right of free 
 discussion is also perfectly unlimited, with the exception, of course, 
 that it must not be used for the purpose of inciting to a breach of the 
 peace or to a violation of the law. The law T upon the question of 
 what is seditious and what is not is to be found stated very clearly in 
 a book by Stephen, J., who has undoubtedly a greater knowledge of 
 criminal law than any other judge who sits upon the bench, and what 
 he has said upon the subject of sedition was submitted to the other 
 judges, who some time back were engaged with him in drafting a 
 criminal code, and upon their report the commissioners say that his 
 statement of law appears to them to be stated accurately as it exists 
 at present. So that that statement has not only the authority of 
 Stephen, J., but also the authority of the judges who w r ere associated 
 with him in preparing the criminal code. This is what he says on 
 seditious words and libels : " Every one commits a misdemeanor who 
 publishes verbally or otherwise words or any document with a sedi- 
 tious intention. If the matter so published consists of words spoken, 
 the offence is called the speaking of seditious words." That is what 
 we have to deal with to-day. " If the matter so published is contained 
 in anything capable of being a libel the offence is called the publica- 
 tion of seditious libel." (r) The next question that one asks is this : 
 There are two offences, one is the offence of speaking seditious words, 
 and the other offence is the publication of a seditious libel. It is 
 obviously important to know what is meant by the word " sedition," 
 and Stephen, J., proceeds in a subsequent article to give a definition 
 of it. He says : " A seditious intention is an intention to bring into 
 hatred or contempt, or to excite disaffection against the person of her 
 Majesty, her heirs, or successors, or the government and constitution 
 of the United Kingdom, as by law established, or either House of 
 Parliament or the administration of justice, or to excite her Majesty's 
 subjects to attempt otherwise than by lawful means the alteration of 
 any matter in Church or State as by law established, or to raise dis- 
 content or disaffection amongst her Majesty's subjects or to promote 
 feelings of ill-will and hostility between different classes of such 
 
 (v) Stephen, Digest of Criminal Law, Art. 91.
 
 chap, xxv.] Rials, limits, and Unlawful Assemblies. 559 
 
 subjects." Stephen, J., goes on to point out what sort of intention 
 is not seditious. " An intention to show that her Majesty has 
 been misled or mistaken in her measures, or to point out errors 
 or defects in the government or constitution as by law established, 
 with a view to their reformation, or to excite her Majesty's subjects 
 to attempt by lawful means the alteration of any matter in Church 
 or State as by law established, or to point out, in order to their 
 removal, matters which are producing, or have a tendency to pro- 
 duce feelings of hatred and ill-will between classes of her Majesty's 
 subjects, is not a seditious intention." (iv~) So there he gives in 
 these two classes what is and what is not sedition. Now, the sedi- 
 tious intentions which it is alleged existed in the minds of the pris- 
 oners in this case, are : First, an intention to excite her Majesty's 
 subjects to attempt otherwise than by lawful means the alteration of 
 some matter in Church or State as by law established ; and secondly, 
 to promote feelings of hostility between different classes of her Majesty's 
 subjects. This is necessarily somewhat vague and general, particu- 
 larly the second portion, which says it is a seditious intention to in- 
 tend to promote feelings of ill-will and hostility between different 
 classes of her Majesty's subjects. I should rather prefer to say, that 
 the intention to promote feelings of ill-will and hostility between dif- 
 ferent classes of her Majesty's subjects may be a seditious intention 
 according to circumstances, and of those circumstances, the jury are 
 the judges ; and I put this question to the Attorney-General in the 
 course of the case : " Suppose a man were to write a letter to the 
 papers attacking bakers and butchers generally with reference to 
 the high prices of bread or meat, and imputing to them that they 
 were in a conspiracy to keep up high prices, — would that be a sedi- 
 tious libel, being written and not spoken ? " To which the Attorney- 
 General gave me the only answer which it was clearly possible to give 
 under the circumstances : " That must depend upon the circum- 
 stances." I, sitting here as a judge, cannot go nearer than that. Any 
 intention to excite ill-will and hostility between different classes of 
 her Majesty's subjects may be a seditious intention ; whether in a 
 particular case this is a seditious intention or not, the jury must judge 
 and decide in their own minds, taking into consideration the whole of 
 the circumstances of the case. You may not unnaturally say that 
 that is a somewhat vague statement of the law, and ask by what prin- 
 ciple shall we be governed in deciding when an intention to excite 
 ill-will and hostility is seditious, and when it is not. For your guid- 
 ance, I will read to you what was said by Fitzgerald, J., in the case 
 of B. v. Sullivan (x), which was a prosecution for a seditious libel, 
 the only difference between the two cases being, of course, that while 
 seditious speeches are spoken a seditious libel is written, but in each 
 of them the adjective " seditious " occurs, and what is a seditious in- 
 tention in one case will equally be a seditious intention in the other. 
 He said : " As such prosecutions are unusual, I think it necessary in 
 the first instance to define sedition and point out what is a seditious 
 libel. Sedition is a crime against society, nearly allied to that of 
 treason, and it frequently precedes treason by a short interval." It 
 
 (w) Stephen, Digest of Criminal Law, (x) 11 Cox, C. C. 44. 
 
 Art. 93.
 
 560 Riots, Bouts, and Unlawful Assemblies. [book ii. 
 
 has been said very truly that there is no such offence as sedition 
 itself, but it takes the form of seditious language either written or 
 spoken, and it is in that sense of course that the learned judge's 
 words are intended to be understood. " Sedition itself is a compre- 
 hensive term, and it embraces all those practices, whether by word, 
 deed, or writing, which are calculated to disturb the tranquillity of 
 the state, and lead ignorant persons to endeavour to subvert the gov- 
 ernment and the laws of the Empire. The objects of sedition gene- 
 rally are to induce discontent and insurrection, and to stir up opposition 
 to the government, and bring the administration of justice into con- 
 tempt ; and the very tendency of sedition is to incite the people tc 
 insurrection and rebellion. Sedition has been described as disloyalty 
 in action, and the law considers as seditious all those practices which 
 have for their object to excite discontent or disaffection, to create pub- 
 lic disturbances, or to lead to civil war ; to bring into hatred or con- 
 tempt the sovereign or the government, the laws or constitution of the 
 realm, and generally all endeavours to promote public disorder." Then 
 a little further on he says : " Words may be of a seditious character 
 but they might arise from sudden heat, be heard only by a few, create 
 no lasting impression, and differ in malignity and permanent effects 
 from writings. Sir Michael Foster said of the latter : ' Seditious 
 writings are permanent things, and if published they scatter the poison 
 far and wide." They are acts of deliberation, capable of satisfactory 
 proof, and not ordinarily liable to misconstruction ; at least they are 
 submitted to the judgment of the court naked and undisguised, as 
 they came out of the author's hands. That points to the nature of 
 the distinction between seditious writings and words, and also points 
 to the difference in the effect which they have, and the extent to 
 which that effect goes, though of course in regard to seditious words, 
 there may be a very great distinction between words uttered to two or 
 three companions in social intercourse, and words uttered to a large 
 multitude." That language the learned judge spoke when he was 
 charging the grand jury upon the subject. When he came to sum up 
 the case to the jury who were actually trying it, after a true bill 
 had been found, he said, and perhaps this is more apposite in showing 
 the spirit in which you ought to deal with the present case so far as 
 you can. " I invite you to deal with the case, which is a grave and 
 important case, in a fair, free, and liberal spirit. In dealing with the 
 articles you should not pause upon an objectionable sentence here, 
 or a strong word there. It is not mere strong language, such as 
 ' desecrated a court of justice,' or tall language, or turgid language that 
 should influence you. You should, I repeat, deal with the articles in 
 a free, fair, and liberal manner. You should recollect that to public 
 political articles great latitude is given. Dealing as they do with the 
 affairs of the day, such articles if written in a fair spirit, and bona 
 fide, often result in the production of great public good. Therefore I 
 advise and recommend you to deal with these publications in a spirit 
 of freedom, and not to view them with an eye of narrow criticism. 
 Again, I say you should not look merely to a strong word or a strong 
 phrase, but to the whole article, and so regarding each article, you 
 should recollect that you are the guardians of the liberty of the press 
 and that whilst you will check its abuse, you will preserve its freedom.
 
 ciiap. xxv.] Riots, Routs, and- Unlawful Assemblies. 5G1 
 
 You will recollect how valuable a blessing the liberty of the press is 
 to all of us, and sure I am, that that liberty will meet no injury, suffer 
 no diminution at your hands. Viewing the case in a free, bold, manly 
 and generous spirit toward the defendant, if you come to the conclu- 
 sion that the publications indicted are not seditious libels, or were not 
 published in the sense imputed to them, you are bound, and I ask 
 you in the name of free discussion, to find a verdict for the defendant. 
 I need not remind you of the worn-out topic to extend to the defend- 
 ant the benefit of the doubt. If on the other hand, on the whole 
 spirit and import of these articles, you are obliged to come to the con- 
 clusions that they are seditious libels, and that their necessary conse- 
 quences are to excite contempt of Her Majesty's Government, or to 
 bring the administration of the law into contempt and impair its 
 functions, — if you come to that conclusion either as to the articles or 
 prints, or any of them, then it becomes your duty honestly and fear- 
 lessly to find a verdict of conviction upon such counts as you believe 
 are proved." Now, that language was used, as I have said, in refer- 
 ence to a seditious libel, but changing the language so as to apply it 
 to a speech, the principles thus laid down are clearly applicable to the 
 case which you have now got before you. And, — although as a 
 judge I can tell you no more than that the intention to incite ill-will 
 amongst the different classes of Her Majesty's subjects may be sedi- 
 tious, and that it is for you to decide, — I confess I should, if I were 
 sitting amongst you as a juryman, go on to say something of this kind 
 which you would or would not listen to, according as you found it to be 
 quite in reason. It is not a matter of law which you are bound to take 
 from me, but it is merely a matter which you would say to each other ; 
 if you think that these defendants, from the whole matter laid before 
 you, had a seditious intention to incite the people to violence, to create 
 public disturbances and disorder, then undoubtedly you ought to find 
 them guilty. If from any sinister motive, as, for instance notoriety, 
 or for the purpose of personal gain, they desired to bring the people 
 into conflict with the authorities, or to incite them tumultuously and 
 disorderly to damage the property of any unoffending citizen, you 
 ought undoubtedly to find them guilty. On the other hand, if you 
 come to the conclusion that they were actuated by an honest desire 
 to alleviate the misery of the unemployed, — if they had a real bon.a 
 fide desire to bring that misery before the public by constitutional 
 and legal means, you should not be too swift to mark any hasty or ill- 
 considered expression which they might utter in the excitement of 
 the moment. Some persons are more led on, more open to excite- 
 ment than others, and one of the defendants, Burns, even when he was 
 defending himself before you, so prone was he to feeling strongly 
 what he does feel, could not refrain from saying that he was unable 
 to see misery and degradation without being moved to strong language 
 and strong action. I mention that to you to show you the kind "of 
 man he is, and for the purpose of seeing (if you come to the conclu- 
 sion that he was honestly endeavouring to call the attention of the 
 authorities to this misery, and honestly endeavouring to keep within 
 the limits of the law and the constitution) that you should not be too 
 strong to mark if he made use of an ill-considered, or too strong an 
 expression. Now, I come to the particular charge which is made 
 vol. i. — 36.
 
 562 Riots, Routs, and Unlawful Assemblies. [book ii. 
 
 against these men. It divides itself roughly into two heads. There 
 is, first, the charge that they uttered certain words upon the occasion 
 of this demonstration, and that is separated into nine counts, and then 
 there comes a general charge which involves the whole of them, 
 namely, that they agreed together before they went to this meeting 
 that they would make speeches with the intention of exciting 
 the people to disorder. I am unable to agree entirely with the 
 Attorney -General when he says that the real charge is that, though 
 these men did not incite or contemplate disorder, yet as it was the 
 natural consequence of the words they used, they are responsible for 
 it. In order to make out the offence of speaking seditious words, 
 there must be a criminal intent upon the part of the accused, they 
 must be words spoken with a seditious intent, and although it is 
 a good working rule, to say that a man must be taken to intend 
 the natural consequence of his acts, and it is very proper to ask a 
 jury to infer, if there is nothing to show the contrary, that he did 
 intend the natural consequences of his acts, yet, if it is shown from 
 other circumstances, that he did not actually intend them, I do not 
 see how you can ask a jury to act upon what has then become a 
 legal fiction. I am glad to say that with regard to this matter, 
 I have the authority again of Stephen, J., who, in his History of 
 the Criminal Law, has dealt with this very point ; he deals with it 
 in reference to the question of seditious libel. He says, (y) " To 
 make the criminality of an act dependent upon the intention with 
 which it is done, is advisable in those cases only in which the 
 intent essential to the crime is capable of being clearly defined and 
 readily inferred from the facts. Wounding, with intent to do griev- 
 ous bodily harm, breaking into a house with intent to commit a 
 felony, abduction with intent to marry or defile, are instances of 
 such offences. Even in these cases, however, the introduction of the 
 term 'intent' occasionally led either to a failure of justice or to 
 the employment of something approaching to a legal fiction in order 
 to avoid it. The maxim that a man intends the natural conse- 
 quences of his acts is usually true, but it may be used as a way of 
 saying that, because reckless indifference to probable consequences 
 is morally as bad as an intention to produce those consequences, the 
 two things ought to be called by the same name, and this is at 
 least an approach to a legal fiction. It is one thing to write with 
 a distinct intention to produce disturbances, and another to write 
 violently and recklessly matter likely to produce disturbances." Now, 
 if you apply that last sentence to the speaking of words, of course 
 it is precisely applicable to the case now before you. It is one 
 thing to speak with the distinct intention to produce disturbances, 
 and another thing to speak recklessly and violently of what is likely 
 to produce disturbances. I must, however, notwithstanding what I 
 have said upon that subject, go on to tell you that it is not at all 
 necessary to the offence of uttering seditious words that an actual 
 riot should follow, that there should be an actual disturbance of 
 the public peace ; it is the uttering with the intent which is the 
 offence, not the consequences which follow, and which have really 
 nothing to do with the offence. A man cannot escape from the 
 
 (y) History of the Criminal Law of England, vol. 2, p. 359.
 
 chap, xxv.] Riots, Routs, and Unlawful Assemblies. 563 
 
 consequences of uttering words with the intent to excite people to 
 violence solely because the persons to whom they are addressed may 
 be too wise or too temperate to be seduced into that violence. That 
 has, however, no important bearing in this case. If you come to the 
 conclusion that language was used by the defendants or any of them 
 upon the occasion of that meeting in Trafalgar Square, and that it 
 was their intention to excite the people to violence to a breach of 
 the law, why then that would undoubtedly be the uttering of sedi- 
 tious words. And I apprehend that the Attorney-General was anxious 
 to fortify himself with this, that the actual disturbances were the 
 natural consequence of what was said, and for perhaps more than 
 one reason. In the first place the Government undoubtedly declined 
 to prosecute on the assumption that the defendants had actually 
 incited to the particular disturbances, and although that as I have 
 said is not at all necessary or essential to the procuring of a con- 
 viction, yet undoubtedly that is the moral justification, so to say, 
 the grounds upon which the Government do place the action which 
 they take, and therefore if they can show, or if you are satisfied 
 that these disturbances although not contemplated by the defendants, 
 were the natural consequence of their acts, although that has nothing 
 at all to do with the charge which we are engaged in investigating, 
 yet it does affect in some way the position which the Government 
 desire to take up. There is another point however which does affect 
 the question which you have to try, and it is this, as to the language 
 used by the defendant, Was it used with the intention to produce 
 violence ? As something no doubt may be gathered from the effect 
 which was actually produced, there does come a point when one must 
 say, " This was so violent and reckless that it is impossible to con- 
 ceive that the man who uttered this did not intend the consequence 
 which must ensue from it." Again, there is another passage of 
 Stephen, J.'s, book, where he says, (z) " If a meeting is held for the 
 purpose of speaking seditious words to those who may attend it, those 
 who take part in that design are guilty of a seditious conspiracy." 
 Now in order to have a conspiracy you must have an agreement 
 formed beforehand between the parties in that conspiracy, that they 
 will hold or have a meeting, and that the words there spoken shall 
 be words of sedition. As I have said, I do not see any evidence 
 that at all points to any such conspiracy, and I certainly should 
 recommend you strongly not to pay any further attention to that 
 part of the case. But the Attorney-General says, and very properly, 
 although there may have been no previous conspiracy, yet when peo- 
 ple do go to a meeting there are circumstances under which a man 
 may be responsible not only for what he says, but also for what some 
 one else says. Now what are those circumstances ? Stephen, J., says : 
 " If at a meeting lawfully convened seditious words are spoken, of 
 such a nature as are likely to produce a breach of the peace, that 
 meeting may become unlawful, and all those who speak the words 
 undoubtedly are guilty of uttering seditious words, and those who 
 do anything to help those who speak to produce upon the hearers 
 the natural effect of the words spoken." You must do something 
 more than stand by and say nothing ; if you express approval of the 
 (z) History of the Criminal Law of England, vol. 2, p. 386.
 
 564 Riots, liouts, and Unlawful Assemblies. [book ii. 
 
 statements of speakers who utter seditious language that equally will 
 do ; if you make a speech calculated to help that part of the speech 
 made by some one else, and which excited to disorder ; if you do 
 anything to help that part of the effect upon the hearers, then 
 undoubtedly you will be guilty of uttering seditious words just as 
 if you spoke them yourself. But there must be something of that 
 kind. If one man uses seditious words at a meeting, those who 
 stand by and do nothing, although they do not reprobate them, are 
 not guilty of uttering seditious words. Those even who make a speech 
 themselves are not guilty of uttering seditious words unless you can 
 gather from the language they use that they are endeavouring to assist 
 the other man in carrying out that portion of his speech, and by that 
 course endeavouring to assist him in causing his words, which excite 
 to disorder, to produce their natural effect upon the people.' [The 
 learned judge then reviewed the evidence given on the part of the 
 prosecution and the defence, and pointed out that there was consider- 
 able difficulty in separating and apportioning the different elements 
 which contributed to the riots, that public meetings and public discus- 
 sions always attracted together numbers of rough persons, members of 
 criminal classes and other persons not dishonest, but noisy and dis- 
 orderly, and who would take advantage of the absence of the police 
 to break windows and street lamps, and do other mischief of that 
 kind, and that it w y as impossible to say that any disorder that arose 
 was necessarily due to speeches made by persons who were them- 
 selves orderly, because of the presence of the disorderly elements 
 of the crowd who had collected together, and, in conclusion, said :] 
 ' I must now leave you to apply the principles of law I have laid 
 down to the facts which have been laid before you. I have to 
 remind you of what you are asked to say. What you are asked 
 to decide on is whether the prisoners — all of them, or some of them, 
 and if some of them, which of them — did upon this occasion, in 
 Trafalgar Square, incite the people whom they were addressing to 
 redress their grievance by violence Did they intentionally incite 
 ill-will between different classes in such a way as to be likely to 
 lead to a disturbance of the public peace ? I have already told you 
 that you must take a broad and even a generous view of the whole 
 of the case presented to you. You must not attach too much impor- 
 tance to isolated phrases, but you must look at the general gist of 
 the matter. You must consider the object which took them there, 
 the way they set about attaining it, and you must also consider to 
 some extent, as throwing some light upon your decision, whether 
 the riots which actually took place were the natural consequences 
 of speeches delivered on that occasion. I cannot conclude without 
 expressing my sense of the extreme folly of those w T ho seek to incite 
 the people to violence. And for this reason : There has been no 
 period of history where violence was so practically useless. The 
 Government being in the hands of the people, none can hope to 
 carry out by force views which he might be able to effect by pru- 
 dence and consistency, and by legal and legitimate means. And 
 therefore, to incite people to use force is to expose foolish men, and 
 men who do not see the danger they run, to a conflict with the author-
 
 chap, xxv.] Riots, Routs, and Unlawful Assemblies. 565 
 
 ities with the certainty that they will have to pay with grievous loss 
 of life.' (a) 
 
 The jury returned a verdict of Not Guilty. 
 
 Statutes relating to riot. — Concerning some acts done in a tu- 
 multuous and riotous manner, especial provision is made by particular 
 statutes. By the 24 & 25 Vict. c. 97, s. 11, ' If any persons riotously 
 and tumultuously assembled together to the disturbance of the public 
 peace shall unlawfully and with force demolish, or pull down, or 
 destroy, or begin to demolish, pull down, or destroy any church, 
 chapel, meeting-house, or other place of Divine worship, or any 
 house, stable, coach-house, outhouse, warehouse, office, shop, mill, 
 malt-house, hop-oast, barn, granary, shed, hovel, or fold, or any build- 
 ing or erection used in farming land, or in carrying on any trade 
 or manufacture, or any branch thereof, or any building other than 
 such as are in this section before mentioned, belonging to the Queen, or 
 to any county, riding, division, city, borough, poor-law union, parish, or 
 place, or belonging to any university, or college, or hall of any university, 
 or to any inn of court, or devoted or dedicated to public use or ornament, 
 or erected or maintained by public subscription or contribution, or any 
 machinery, whether fixed or movable, prepared for or employed in 
 any manufacture or in any branch thereof, or any steam-engine or 
 other engine for sinking, working, ventilating, or draining any mine, 
 or any staith, building, or erection used in conducting the business of 
 any mine, or any bridge, waggon-way, or trunk for conveying minerals 
 from any mine, every such offender shall be guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the Court, to be 
 kept in penal servitude for life or for any term not less than three 
 years, — or to be imprisoned for any term not exceeding two 
 years, with or without hard labour, and with or without solitary 
 confinement.' (b) 
 
 Sec. 12. 'If any persons, riotously and tumultously assembled to- 
 gether to the disturbance of the public peace, shall unlawfully and 
 with force injure or damage any such church, chapel, meeting-house, 
 place of Divine worship, house, stable, coach-house, outhouse, ware- 
 house, office, shop, mill, malt-house, hop-oast, barn, granary, shed, 
 hovel, fold, building, erection, machinery, engine, staith, bridge, wag- 
 gon-way, or trunk, as is in the last preceding section mentioned, every 
 such offender shall be guilty of a misdemeanor, and being convicted 
 thereof shall be liable, at the discretion of the Court, to be kept in 
 penal servitude for any term not exceeding seven years and not less 
 than three years, — or to be imprisoned for any term not exceeding 
 two years, with or without hard labour : provided that if upon the 
 trial of any person for any felony in the last preceding section men- 
 tioned the jury shall not be satisfied that such person is guilty thereof, 
 but shall be satisfied that he is guilty of any offence in this section 
 mentioned, then the jury may find him guilty thereof, and he may be 
 punished accordingly.' 
 
 This clause is new, and is intended to provide both for cases where 
 there is no sufficient evidence of an intention to proceed to the total 
 
 (a) R. v. Burns, 16 Cox, C. C. 355. actments in the 23 & 24 Geo. 3, c. 20, 
 
 (b) This clause is taken from the 7 & 8 ss. 7, 8 (I.), and 27 Geo. 3, c. 15, s. 5 (I.). 
 Geo. 4, c. 30, s. 8. There were similar en-
 
 566 Riots, Bouts, and Unlawful Assemblies. [book ii. 
 
 demolition of the house, &c., (c) and also for cases where no such in- 
 tent ever existed, provided there be a riot, and injury done, within the 
 terms of the clause. 
 
 The latter part of the clause enables the jury, who try an indict- 
 ment for any felony mentioned in the preceding section, to convict of 
 the offence created by this clause if they are not satisfied that an 
 offence within the preceding clause is satisfactorily proved. It is still 
 necessary, however, with a view to the trial of cases under the pre- 
 ceding clause, to mention the decisions on the former clause in the 
 7 & 8 Geo. 4, c. 30, s. 8. 
 
 If rioters, after proceeding a certain length, leave off of their own 
 accord before the act of demolition be completed, that is evidence 
 from which a jury may infer that they did not intend to demolish the 
 house. 
 
 A party of rioters came to a house about midnight, and in a riotous 
 manner burst open the door, broke some of the furniture, all the win- 
 dows, and one of the window-frames, and then went away, there being 
 nothing to hinder them from doing more damage ; it was held that, 
 although the breaking and damage done was a sufficient beginning to 
 demolish the house, yet unless the jury were satisfied that the ulti- 
 mate object was to destroy the house, and that if they had carried 
 their intentions into full effect, they would, in point of fact, have de- 
 molished it, it was not a beginning to demolish within the 7 & 8 Geo. 
 4, c. 30, s. 8. (d) 
 
 A party of coal-whippers having a feeling of ill-will to a coal-lumper, 
 who paid less than the usual wages, created a mob, riotously went to 
 the house where he kept his pay-table, cried out that they would 
 murder him, threw stones, brick-bats, &c, broke windows and parti- 
 tions, and threw down part of a wall in a yard, and continued, after 
 his escape, throwing stones at the house, till they were compelled to 
 desist by the threats of the police ; it was held that this case was dis- 
 tinguishable from R. v. Tlwmas, because the mob did not leave off 
 voluntarily, but after the threats of the police, and that they might be 
 convicted of beginning to demolish the house, though their principal 
 object was to injure the lumper, provided it was also their object to 
 demolish the house, (e) The beginning to pull down means not simply 
 a demolition of a part, but a part with an intent to demolish the 
 whole. The prisoners were indicted for beginning to demolish a build- 
 ing used in carrying on a trade. It appeared that they began by 
 breaking the windows and doors, and having afterwards entered the 
 house, they set fire to the furniture, but no part of the house was 
 burnt. Parke, J., told the jury ' the beginning to pull down means not 
 simply a demolition of a part, but a part with an intent to demolish 
 the whole. It is for you to say if the prisoners meant to stop where 
 they did, and do no more ; because if they did, they are not guilty ; 
 but if they intended, when they broke the windows and doors, to go 
 
 (c) In order to support a conviction Howell, 9 C. & P. 437. R. v. Price, 5 C. 
 under s. 11 it must be shown that the rioters & P. 510, where the persons committing 
 intended totally to destroy the house the outrage only intended to get possession 
 attacked. Drake v. Foottitt, 7 Q. B. D. of a person who had entered the house. 
 201. See R. v. Howell, post, p. 568. (>■) R. v. Batt, 6 C. & P. 329, Gurney, 
 
 (d) R. v. Thomas, MS. C. S. G., and 4 B., decided under the 7 & 8 Geo. 4, c. 30, 
 C. & P. 237, Littledale, J. See also R. v. s. 8.
 
 chap, xxv.] Riots, Routs, and Unlawful Assemblies. 567 
 
 farther, and destroy the house, then they are guilty of a capital offence. 
 If they had the full means of going farther, and were not interrupted, 
 but left off of their own accord, it is evidence from which you may 
 judge that they meant the work of demolition to stop where it did. 
 If you think that they originally came there without intent to demolish, 
 and the setting fire to the furniture was an afterthought, but with 
 that intent, then you must acquit, because no part of the house having 
 been burnt, there was no beginning to destroy the house. If they 
 came originally without such intent, but had afterwards set fire to the 
 house, then the offence would be arson. If you have doubts whether 
 they originally came with a purpose to demolish, you may use the 
 setting fire to the furniture under such circumstances, and in such 
 manner, as that the necessary consequence, if not for timely interfer- 
 ence, would have been the burning of the house, as evidence to show 
 that they had such intent, although they began to demolish in another 
 manner.' (/) Upon an indictment under the 7 & 8 Geo 4, c. 30, s. 8, 
 for riotously and tumultuously assembling together, and beginning to 
 demolish a house, the jury could not convict unless they were satis- 
 fied that the prisoners intended to leave the house no house at all in 
 fact ; for if they intended to leave it still a house, though in a state 
 however dilapidated, they were not guilty of the offence. To have left 
 off the work of devastation without interruption would lead to the in- 
 ference that the prisoners did not intend to destroy the house ; but 
 even if they were interrupted, the question still remained, what was 
 their ultimate intention ? If they had been some time at their work 
 of ruin before they were interrupted, it was for the jury to say, look- 
 ing to the nature of the things which they had destroyed, whether 
 their purpose was to demolish the house itself, (g) 
 
 Although setting fire to a house is a substantive felony, yet if fire 
 is made the means of attempting to destroy a house, it is as much a 
 beginning to demolish as if any other mode of destruction were resorted 
 to, and the indictment may be for that offence (i). 
 
 If a person forms part of a riotous assembly at the time the act of 
 demolition commences, or if he wilfully joins such riotous assembly, 
 so as to co-operate with them whilst the act of demolition is going on, 
 and before it is completed, in either case he comes within the descrip- 
 tion of the offence, although he may not have assisted with his own 
 hand in the demolition of the building. (/) Where a house was demol- 
 ished by rioters by means of fire, which was lighted before one o'clock 
 in the night, and there was no evidence to show that the prisoner was 
 present at the time when the house was set on fire, but it was proved 
 that he was there between two and three o'clock whilst the house was 
 burning, and whilst the mob, who set it on fire, were still there ; it was 
 held that the prisoner was properly convicted as a principal. For 
 although it was possible, if this had been an indictment for burning 
 the house, that the prisoner could not have been convicted as a principal, 
 yet this was an offence under an enactment that made it felony if per- 
 
 (/) Ashton's case, 1 Lewin, 296, (i) R. v. Simpson, C. & M. 669. R. v. 
 
 Parke, J. Harris, C. & M. 661, Tindal, C. J., Parke, 
 
 (!7) R. v. Adams, C. & M. 299, Cole- and Rolfe, BB. 
 ridge, J. (j ) Per Tindal, C. J., Bristol Special 
 
 Commission, 5 C. & P. 265, note.
 
 568 Riots, Routs, and Unlawful Assemblies. [book ii. 
 
 sons riotously and tumultuously assembled together to the disturbance 
 of the public peace, and when so assembled destroyed a house ; therefore 
 it was not simply the fact of destroying a house by fire, but it was the 
 combined fact of riotously assembling together and whilst the riot 
 continued demolishing the house. Now to make a party guilty of 
 that, he must be shown to be one of those who were present at the 
 offence, or he could not be aiding or abetting. But as it was not only 
 the burning, but also the riotously assembling together, the whole of 
 the prisoner's conduct on that day was left to the jury ; and it was 
 distinctly left to them that unless they were satisfied that the pris- 
 oner had by his language excited the mob to the act which was the 
 subject-matter of the inquiry, and afterwards been present at it, he 
 was not guilty, (k) 
 
 Upon an indictment on the 7 & 8 Geo. 4, c. 30, s. 8, for riotously and 
 feloniously demolishing a house, it was a sufficient demolishing of the 
 house if it were so far destroyed as to be no longer a house ; and the 
 fact that the rioters left the chimney standing made no difference. (I) 
 
 In order to prove that there was a beginning to demolish the house, 
 it must be proved that some part of the freehold was destroyed ; it is 
 not therefore sufficient to prove that the window-shutters were 
 demolished, (m) 
 
 The 7 & 8 Geo. 4, c. 30, s. 8, not having given any definition of 
 what should be a riot within the meaning of that enactment, the com- 
 mon-law definition of a riot was resorted to, and, in such a case, if any 
 one of Her Majesty's subjects were terrified, this was a sufficient terror 
 and alarm to substantiate that part of the charge, (n) 
 
 If persons riotously assembled and demolished a house, really 
 believing that it was the property of one of them, and acted bona fide 
 in the assertion of a supposed right, this was not a felonious demoli- 
 tion of the house within the 7 & 8 Geo. 4, c. 30. s. 8, even though 
 there were a riot, (o) 
 
 The 33 Geo. 3, c. 67, s. 1, reciting that seamen, keelmen, &c. had of 
 late assembled themselves in great numbers, and had committed many 
 acts of violence ; and that such practices, if continued, might occasion 
 great loss and damage to individuals, and injure the trade and navi- 
 gation of the kingdom, enacts, ' that if any seamen, keelmen, casters, 
 ship-carpenters, or other persons, riotously assembled together to the 
 number of three or more, shall unlawfully and with force prevent, 
 hinder, or obstruct, the loading or unloading, or the sailing or navi- 
 gating, of any ship, keel, or other vessel, or shall unlawfully and 
 with force board any ship, keel, or other vessel, with intent to prevent, 
 hinder, or obstruct, the loading or unloading or the sailing or navigat- 
 ing of such ship, keel, or other vessel, every seaman, keelman, caster, 
 ship-carpenter, and other person ' (being lawfully convicted of any of 
 the offences aforesaid upon any indictment found in any court of 
 oyer and terminer, or general or quarter sessions of the peace for 
 
 (ife) R. v. Simpson, C. & M. 669, Tindal, (m) Ibid. 
 
 C. J., Parke, B., andRolfe, B. The prisoner (n) Ibid. 
 
 was indicted under the 7 & 8 Geo. 4, c. 30, (o) R. v. Howell, 9 C & P. 437, Little- 
 
 s. 8. dale, J. 
 
 (/) R. v. Phillips, 2 M. C. C. 252. S. C. 
 R. v. Langford, C. & M. 602.
 
 chap, xxv.] Riots, Routs, and Unlawful Assemblies. 5GD 
 
 the county, division, district, &c, wherein the offence was committed), 
 shall be committed either to the common gaol or to the house of cor- 
 rection for the same county, &c, there to continue and to be kept to 
 hard labour for any term not exceeding twelve calendar months, nor 
 less than six calendar months. By sec. 4, the Act shall not extend to 
 any act, deed, &c, done in the service, or by the authority of his 
 Majesty. By sec. 7, offences committed on the high seas shall be 
 triable in any session of oyer and terminer, &c, for the trial of offences 
 committed on the high seas within the jurisdiction of the Admiralty. 
 And by sec. 8, the prosecution for any of the said offences is 
 to be commenced within twelve calendar months after the offence 
 committed. (j?) 
 
 Women are punishable as rioters ; but infants under the age of dis- 
 cretion are not. (q) 
 
 Routs. — II. By some books the notion of a rout is confined to 
 such assemblies only as are occasioned by some grievance common to 
 all the company ; as the enclosure of land in which they all claim a 
 right of common, &c. But, according to the general opinion, it seems 
 to be a disturbance of the peace by persons assembling together with 
 an intention to do a thing, which, if it be executed, will make them 
 rioters, and actually making a motion towards the execution of their 
 purpose. In fact, it generally agrees in all the particulars with a riot, 
 except only in this, that it may be a complete offence without the 
 execution of the intended enterprise, (r) And it seems, by the recitals 
 in several statutes, that if people assemble themselves, and afterwards 
 proceed, ride, go forth, or move by instigation of one or several con- 
 ducting them, this is a rout ; inasmuch as they move and proceed in 
 rout and number, (s) 
 
 Unlawful assemblies. 1 — III. An unlawful assembly, according to 
 the common opinion, is a disturbance of the peace by persons barely 
 assembling together with an intention to do a thing which, if it were 
 executed, would make them rioters, but neither actually executing it 
 nor making a motion toward its execution. Mr. Serjeant Hawkins, 
 however, thinks this much too narrow an opinion ; and that any meet- 
 ing of great numbers of people with such circumstances of terror as 
 cannot but endanger the public peace, and raise fears and jealousies 
 among the King's subjects, seems properly to be called an unlawful 
 assembly. As where great numbers complaining of a common griev- 
 ance meet together, armed in a warlike manner, in order to consult 
 together concerning the most proper means for the recovery of their 
 interests : for no one can foresee what may be the event of such an 
 
 (p) This statute was made perpetual by and not bv guardian. R. v. Tanner, 2 Lord 
 
 41 Geo. 3, c. 19. Raym. 1284. 
 
 (q) 1 Hawk. P. C. c. 65, s. 14. Ante, \r) 1 Hawk. P. C. c. 65, s. 8. 
 
 p. 114, et scq. But an infant above the age (s) 19 Vin. Abr. tit. Riots, frc. (A.) 2. 
 
 of discretion is punishable. The course of referring to 18 Edw. 3, c. 1, 13 Hen. 4. 
 
 the Crown Office is for infants, though under c. ult., and 2 Hen. 5, c. 8. 
 the age of eighteen, to appear by attorney, 
 
 American Note. 
 
 1 In some States there have been statutes person or property, or any unlawful act. 
 
 passed defining this offence. In New York See P. v. Most, 12S N. Y. 108. As to 
 
 the threatened act must be one ' tending Nebraska, see Meese v. S., 15 Neb. 558. 
 towards a breach of the peace or an injury to
 
 570 Riots, Routs, and Unlawful Assemblies. [book ii. 
 
 assembly, (t) So in some cases it has been ruled that an assembly of 
 great numbers of persons, which from its general appearance and 
 accompanying circumstances is calculated to excite terror, alarm, and 
 consternation, is generally criminal and unlawful, (u) And it has been 
 laid down by a learned judge, that ' any meeting assembled under such 
 circumstances as, according to the opinion of rational and firm men 
 are likely to produce danger to the tranquillity and peace of the neigh- 
 bourhood, is an unlawful assembly : ' and in viewing this question, the 
 jury should take into their consideration the way in which the meet- 
 ings were held, the hour at which they met, and the language used by 
 the persons assembled, and by those who addressed them : and then 
 consider whether firm and rational men, having their families and 
 property there, would have reasonable ground to fear a breach of the 
 peace, as the alarm must not be merely such as would frighten any 
 foolish or timid person, but must be such as would alarm persons of 
 reasonable firmness and courage, (v) And all persons who join an 
 assembly of this kind, disregarding its probable effect and the alarm 
 and consternation which are likely to ensue, and all who give coun- 
 tenance and support to it, are criminal parties, (w) 
 
 The difference between a riot and unlawful assembly is this : if the 
 parties assemble in a tumultuous manner, and actually execute their 
 purpose with violence, it is a riot ; but if they merely meet upon a 
 purpose which, if executed, would make them rioters, and having done 
 nothing, they separate without carrying their purpose into effect, it is 
 an unlawful assembly, (x) 
 
 An assembly of a man's friends for the defence of his person against 
 those who threaten to beat him if he go to such a market, &c, is un- 
 lawful ; for he who is in fear of such insults must provide for his 
 safety by demanding the surety of the peace against the persons by 
 whom he is threatened, and not make use of such violent methods, 
 which cannot but be attended with the danger of raising tumults and 
 disorders to the disturbance of the public peace. But an assembly of a 
 man's friends in his own house, for the defence of the possession of it 
 against such as threaten to make an unlawful entry, or for the defence 
 of his person against such as threaten to beat him in his house, is in- 
 dulged by law ; for a man's house is looked upon as his castle, (y) 
 He is not, however, to arm himself and assemble his friends in defence 
 of his close, (z) 
 
 An assembly of persons to witness a prize fight is an unlawful 
 
 (t) 1 HawL\ P. C. c. 65, s. 9. There son, B. See R. v. Neale, 9 C. & P. 431, 
 
 may be an unlawful assembly if the people Littledale, J. 
 
 assemble themselves together for an ill pur- {w) Per Holroyd, J., Redford v. Birley, 
 
 pose contra pacem, though they do nothing, supra. 
 
 Br. tit. Riots, pi. 4. Lord Coke speaks of an (x) Per Patteson, J. R. v. Birt, 5 C. & 
 
 unlawful assembly as being when three or P. 154. 
 
 more assemble themselves together to com- (y) 1 Hawk. P. C. c. 65, ss. 9, 10. 19 
 
 mit a riot or rout, and do not do it. 3 Inst. v in. Abr. tit. Riots, Src. (A.) 5, 6. And by 
 
 176. R. v. McXaughten, 14 Cox, C. C. 576. Holt, C. J., in R. v. Soley, 11 Mod. 116, 
 
 See also per Charles, J. R., v. Cunninghame though a man may ride with arms, yet he 
 
 Grahame, 16 Cox, C. C. 420. cannot take two with him to defend him- 
 
 (u) Per Bayley, J., in R. v. Hunt, York self, even though his life is threatened ; for 
 
 Spring Assizes, 1820 ; and per Holroyd, J., he is in the protection of the law, which is 
 
 in Redford v. Birlev, Lancaster Spring As- sufficient for his defence, 
 sizes, 1822, 3 Stark." N. P. C. 76. (z) By Heath, J., R. v. the Bishop of 
 
 (v) R. v. Vincent, 9 C. & P. 91, Alder- Bangor, Shrewsbury Summer Assizes, 1796.
 
 chap, xxv.] Riots, Routs, and Unlawful Assemblies. 571 
 
 assembly, and every one present and countenancing the fight is guilty 
 of an offence, (a) Where sixteen persons, with their faces blackened, 
 and armed with guns and sticks, met at a house at night, intending to 
 go out for the purpose of night poaching, Holroyd, J., held, that it was 
 impossible that a meeting to go out with faces thus disguised, at night, 
 and under such circumstances, could be other than an unlawful 
 assembly, (b) 
 
 A meeting of the Salvation Army in the open street with the 
 knowledge that the meeting would be opposed, and with good reason 
 to suppose that such opposition would result in a breach of the peace, 
 has been held not to be an unlawful assembly, (c) 
 
 The conspiring of several persons to meet together for the purpose 
 of disturbing the peace and tranquillity of the realm, of exciting dis- 
 content and disaffection, and of exciting the King's subjects to hatred 
 of the government and constitution, may be prosecuted by an indict- 
 ment for a conspiracy, (d) 
 
 Unlawful assemblies and seditious meetings having in many 
 instances appeared to threaten the public tranquillity and the 
 security of the government, several statutes have been passed for 
 the purpose of their more immediate and effectual suppression. 1 
 
 The 1 Geo. 1. st. 2, c. 5, s. 1, reciting that many rebellious riots and 
 tumults had been in divers parts of the kingdom, to the disturbance 
 of the public peace and the endangering of his Majesty's person and 
 government, and that the punishments provided by the laws then in 
 being were not adequate to such heinous offences ; for the preventing 
 and suppressing such riots and tumults, and for the more speedy and 
 effectual punishing the offenders, enacts, ' that if any persons to the 
 number of twelve or more, being unlawfully, riotously, and tumultu- 
 ously assembled together, to the disturbance of the public peace, and 
 being required or commanded by any one or more justice or justices 
 of the peace, or by the sheriff of the county, or his under-sheriff, or 
 by the mayor, bailiff or bailiffs, or other head officer, or justice of the 
 peace of any city or town corporate, where such assembly shall be, by 
 proclamation to be made in the King's name, in the form hereinafter 
 directed, to disperse themselves, and peaceably to depart to their 
 habitations or to their lawful business, shall, to the number of twelve 
 or more (notwithstanding such proclamation made), unlawfully, riot- 
 ously, and tumultuously remain or continue together by the space of 
 one hour after such command or request made by proclamation, and 
 then such continuing together to the number of twelve or more, after 
 such command or request made by proclamation, shall be adjudged 
 felony without benefit of clergy, and the offenders therein shall be 
 adjudged felons, and shall suffer death as in case of felony without 
 benefit of clergy.' (e) 
 
 (a) R. v. Billingham, 2 C. & P. 234, (c) Beattv v. Gillbanks, 9 Q. B. D. 308 ; 
 Burrough, J. See R. v. Perkins, 4 C. & P. E. v. Markson, 17 Cox, C. C. 483. 
 
 537, per Patteson, J. (d) R. v. Hunt, 3 B. & A. 566. 
 
 (b) R. v. Brodribb, 6 C. & P. 571, ante, (e) See post, as to the present punish- 
 p. 285. ment. 
 
 American Note. 
 1 These statutes do not appear to be acted on in America. See Bishop i. s. 534.
 
 572 Riots, Mouts, and Unlawful Assemblies. [book ii. 
 
 Sec. 2. ' The justice of the peace, or other person authorized by the 
 Act to make the proclamation, shall, among the said rioters, or as near 
 to them as he can safely come, with a loud voice command, or cause 
 to be commanded, silence to be while proclamation is making, and 
 after that shall openly and with loud voice make, or cause to be made, 
 proclamation in these words, or like in effect : ' Our sovereign lord 
 the King chargeth and commandeth all persons being assembled, 
 immediately to disperse themselves, and peaceably to depart to their 
 habitations, or to their lawful business, upon the pains contained in 
 the Act made in the first year of King George, for preventing tumults 
 and riotous assemblies. God save the King.' And every justice, 
 sheriff, &c, within the limits of their respective jurisdictions, are 
 authorized and required, on notice or knowledge of any such unlawful 
 assembly of twelve or more persons, to resort to the place, and there 
 to make or cause such proclamation to be made.' 
 
 Sec. 3. ' If the persons so unlawfully, riotously and tumultuously 
 assembled, or twelve or more of them, after such proclamation, shall 
 continue together and not disperse themselves within one hour, it 
 shall be lawful for every justice, sheriff, or under-sheriff of the county 
 where such assembly shall be, and for every constable or other peace- 
 officer within such county, and for every mayor, justice, sheriff, bailiff, 
 and other head officer, constable, and other peace officer of any city or 
 town where such assembly shall be, and for such other persons as 
 shall be commanded to be assisting under any such justice, sheriff, or 
 under-sheriff, mayor, bailiff, or other head officer (who are hereby 
 authorized to command all his Majesty's subjects of age and ability to 
 be assisting to them therein) to seize and apprehend such persons so 
 unlawfully, riotously, and tumultuously continuing together after 
 proclamation made ; and they are hereby required so to do. And they 
 shall carry the persons so apprehended before one or more of his 
 Majesty's justices of the peace of the county or place where such per- 
 sons shall be so apprehended, in order to their being proceeded against 
 according to law. And the section also enacts, that if any of the per- 
 sons so assembled shall happen to be killed, maimed, or hurt, in the 
 dispersing, seizing, or apprehending them, or in the endeavour to do 
 so, by reason of their resisting, then every such justice, &c, constable, 
 or other peace officer, and all persons being aiding and assisting to 
 them, shall be free, discharged, and indemnified concerning such kill- 
 ing, maiming, or hurting.' 
 
 Sec. 5. ' If any person or persons do, or shall, with force and arms, 
 wilfully and knowingly oppose, obstruct, or in any manner wilfully 
 and knowingly let, hinder, or hurt, any person or persons that shall 
 begin to proclaim, or go to proclaim, according to the proclamation 
 hereby directed to be made, whereby such proclamation shall not be 
 made, that then every such opposing, obstructing, letting, hindering, 
 or hurting, such person or persons, so beginning or going to make such 
 proclamation as aforesaid, shall be adjudged felony without benefit of 
 clergy ; and the offenders therein shall be adjudged felons, and shall 
 suffer death, as in case of felony, without benefit of clergy ; and that 
 also every such person or persons being so unlawfully, riotously, and 
 tumultuously assembled, to the number of twelve, as aforesaid, or 
 more, to whom proclamation should or ought to have been made, if
 
 chap, xxv.] Riots, Routs, and Unlawful Assemblies. 573 
 
 the same had not been hindered, as aforesaid, shall likewise, in case 
 they or any of them, to the number of twelve or more, shall continue 
 together, and not disperse themselves within one hour after snch let 
 or hindrance so made, having knowledge of such let or hindrance so 
 made, shall be adjudged felons, and shall suffer death as in case of 
 felony, without benefit of clergy.' (/) 
 
 Sec. 8. The prosecution for any offence against the Act is to be com- 
 menced within twelve months after the offence committed, (^r) 
 
 The 1 Vict. c. 91, recites sec. 1 & 5 of this Act, and provides that, 
 after the 1st of October, 1837, any person convicted of any of the said 
 offences shall not suffer death, but be liable to transportation (/?,) for 
 life, or for any term not less than fifteen (i) years, or imprisonment, 
 with or without hard labour, in the common gaol or house of correc- 
 tion, for any term not exceeding three years, and solitary confinement 
 for any portion or portions of such imprisonment, or of such imprison- 
 ment with hard labour, not exceeding one month at any one time, and 
 not exceeding three months in any one year. (J) 
 
 The 1 Geo. 1, st. 2, c. 5, contains no provisions as to principals 
 in the second degree, or accessories ; there may, however, be such 
 principals and accessories. The principals in the second degree and 
 accessories before the fact are punishable as principals in the first 
 degree ; (ft) and the accessories after the fact are punishable with 
 imprisonment for not exceeding two years, with or without hard 
 labour, in the common gaol or house of correction. (7) 
 
 If the magistrate omit the words ' God save the King,' the proclama- 
 tion is insufficient. (m~) If an indictment upon sec. 1, in setting out 
 the proclamation, omit the words ' of the reign of/ which were con- 
 tained in the proclamation read, this is a fatal variance. Qii) The 
 hour is to be computed from the first reading of the proclamation. 
 Where, therefore, a magistrate read the proclamation a second and 
 third time before an hour had elapsed from the time of his reading it 
 the first time, and it was objected that the second and third readings 
 must be considered as new warnings, and as if the former readings 
 were abandoned, it was held that the second, or any subsequent read- 
 ing of the proclamation, did not at all do away with the effect of the 
 first reading, and that the hour was to be computed from the time of 
 the first reading of the proclamation (>i) 
 
 If there be such an assembly that there would have been a riot, if 
 the parties had carried their purpose into effect, it is within the 
 Act. (ii) 
 
 Upon an indictment under sec. 1, it was not proved that the pris- 
 oner was among the mob during the whole of the hour, but he was 
 
 (/) See infra, as to the present punish- (i) Not less than three years' penal ser- 
 
 ment. vitude. See ante, p. 79. 
 
 (g) By s. 9, sheriffs, &c, in Scotland, (j) See the sections, ante, p. 258. 
 
 shall have the same power for putting the (k) R. v. Royce", 4 Burr. 2073. 24 & 25 
 
 Act in execution as justices, &c, have here : Vict. c. 94, s. 1, ante, p. 180. 
 
 and offenders in Scotland shall surfer death, (/) 24 & 25 Vict. c. 94, s. 4, ante, p. 182. 
 
 and confiscation of movables. This statute (m) R. v. Child, 4 C. &P. 442, Vaughan, 
 
 is commonly called the Riot Act; and is B., and Alderson, J. 
 
 required by s. 7 to be openly read at every (n) R. v. Woolcock, 5 C. & P. 516. 
 
 quarter sessions and at every leet or law day. Patteson, J. 
 
 (h) Penal servitude by the 20 & 21 Vict. 
 c. 3, s. 2 .
 
 574 Riots, Routs, and Unlawful Assemblies. [book ii. 
 
 proved to have been there at various times during the hour ; it was 
 held that it was a question for the jury, upon all the circumstances, 
 whether he did substantially continue making part of the assembly 
 fur the hour ; for although he might have occasion to separate himself 
 for a minute or two, yet if in substance he was there during the hour 
 he would not be thereby excused, (o) 
 
 A riot is not the less a riot, nor an illegal meeting the less an illegal 
 meeting, because the Kiot Act has not been read, the effect of that 
 being to make the parties guilty of a statutory offence if they do not 
 disperse within an hour ; but if that proclamation be not read, the 
 common-law offence remains, (p) 
 
 By the 39 Geo. 3, c. 79, (q) s. 1, reciting that divers societies had 
 been instituted in this kingdom and in Ireland, of a new and danger- 
 ous nature, inconsistent with public tranquiility and with the existence 
 of regular government, particularly certain societies calling themselves 
 ' Societies of United Englishmen, United Scotsmen, United Britons, 
 United Irishmen, and The London Corresponding Society,' and that it 
 was expedient and necessary that all such societies, and all societies 
 of the like nature, should be utterly suppressed and prohibited, as un- 
 lawful combinations and confederacies, highly dangerous to the peace 
 and tranquillity of these kingdoms, and to the constitution of the gov- 
 ernment thereof, as by law established, it is enacted, 'That all the said 
 societies of United Englishmen, United Scotsmen, United Irishmen, and 
 United Britons, and the said society commonly called the London 
 Corresponding Society, and all other societies called Corresponding 
 Societies, of any other city, town, or place, shall be, and the same are 
 hereby utterly suppressed and prohibited, as being unlawful combina- 
 tions and confederacies against the government of our sovereign lord 
 the King, and against the peace and security of his Majesty's liege 
 subjects.' 
 
 Sec. 2. ' The said societies, and every other society when established 
 or hereafter to be established, the members whereof shall, according 
 to the rules thereof, or to any provisien or agreement for that 
 purpose, be required or admitted to take any oath or engagement, 
 which shall be an unlawful oath or engagement, within the in- 
 tent or meaning of the 37 Geo. 3, c. 123, (r) or to take any oath not 
 required nor authorized by law; and every society the members 
 whereof, or any of them, shall take, or in any manner bind themselves 
 by any such oath or engagement, on becoming, or in consequence of 
 being members of such society : and every society, the members 
 whereof shall take, subscribe, or assent to any test or declaration not 
 required by law, or not authorized in manner hereinafter mentioned ; 
 and every society of which the names of the members, or any of them, 
 
 (o) P. v. James, Gloucester Summer tions. By the second schedule of 32 & 33 
 
 Assizes, 1831. MS. C. S. G. Patteson, J. Vict. c. 24, 'No person shall he prosecuted 
 
 (p) R. v. Fursev, 6 C. & P. 81, Gaselee or sued for any penalty imposed hy this Act 
 
 and Parke, ,TJ. (39 Geo. 3, c. 79) unless such prosecution 
 
 (q) Sec. 4, s. 11, from 'save' to the shall be commenced or such action shall be 
 
 end of that section, and ss. 12 & 39 of this brought within three calendar months uext 
 
 Act, are repealed by 34 & 35 Vict. c. 116. after such penalty shall have been incurred.' 
 
 By 32 & 33 Vict. c. 24, the above Act, 39 As to the recovery and application of these 
 
 Geo. 3, c. 79, is repealed in part, viz., ss. 15 penalties see the above schedule. See 39 
 
 to 33, both inclusive, aud so much of ss. 34 Geo. 3, c. 79, s. 34. 
 
 to 39 as relates to the above-mentioned sec- (r) Ante, p. 404, et seq.
 
 chap, xxv.] Riots, Routs, and Unlauful Assemblies. 575 
 
 shall be kept secret from the society at large, or which shall have any 
 committee, or select body so chosen or appointed, that the members 
 constituting the same shall not be known by the society at large, to 
 be members of such committee, or select body ; or which shall have 
 any president, &c, or other officer, so chosen and appointed, that the 
 election or appointment shall not be known to the society at large, or 
 of which the names of all the members, and of all committees or select 
 bodies of members, and of all presidents, &c, shall not be entered in 
 a book to be kept for that purpose, and open to the inspection of all 
 the members ; and every society which shall be composed of different 
 divisions or branches, or of different parts, acting in any manner sep- 
 arately or distinct from each other, or of which any part shall have 
 any separate or distinct president, &c, or other officer, elected or ap- 
 pointed by, or for such part, or to act as an officer for such part : shall 
 be deemed and taken to be unlawful combinations and confederacies, (s) 
 And further, that every person who shall directly or indirectly main- 
 tain correspondence or intercourse with any such society, or with any 
 division, branch, committee, or other select body, president, &c, or 
 other officer, or member thereof as such, or who shall by contribution 
 of money or otherwise, aid, abet, or support such society, or any mem- 
 bers or officers thereof, as such, shall be deemed guilty of an unlawful 
 combination and confederacy.' 
 
 The Act does not extend to declarations approved by two justices, 
 and registered with the clerk of the peace ; but such approbation shall 
 only remain valid till the next general session, unless the same shall 
 be confirmed by the major part of the justices at such general ses- 
 sion, (t) And it does not extend to the meetings of societies, or 
 lodges of Freemasons, which, before the passing of the Act, had been 
 usually held, under the denomination of ' Lodges of Freemasons,' and 
 in conformity to the rules prevailing among such societies ; (u) pro- 
 vided that there be a certificate of two of the members upon oath, that 
 such society or lodge had been usually held under such denomination, 
 and in conformity to such rules ; the certificate duly attested, &c, be- 
 ing, within two months after the passing of the Act, deposited with 
 the clerk of the peace, with whom also the name or denomination of 
 the society or lodge, and the usual place and time of meeting, and the 
 names and descriptions of the members are to be registered yearly, (v) 
 The clerk of the peace is required to enrol such certificate and registry, 
 and to lay the same once in every year before the general session of 
 the justices ; and the justices may, upon complaint upon oath, that the 
 continuance of the meetings of any such lodge or society is likely to 
 be injurious to the public peace and good order, direct them to be dis- 
 continued ; and any such meeting, held notwithstanding such order of 
 discontinuance, and before the same shall, by the like authority, be 
 revoked, shall be deemed an unlaivfid combination and confederacy/ 
 under the provisions of the Act. (to) 
 
 (s) By the 57 Geo. 3, c. 19, s. 27, this (u) Sec. 5. 
 
 enactment is not to extend to meetings of (v) Sec. 6. 
 
 Quakers, or to any meeting or society for (w) By 38 & 39 Vict. c. 60 (The Friendly 
 
 purposes of a religious or charitable nature Societies Act,1875),s. 15, registered societies 
 
 only, and in which no other matter shall be shall be entitled to the following privileges : 
 
 discussed. No society, or meeting of a society shall be 
 
 (t) 39 Geo. 3, c. 79, s. 3. affected by any of the provisions of the Acts
 
 576 Riots, Routs, and Unlawful Assemblies. [book ii. 
 
 But the justice or justices, before whom any person shall be con- 
 victed of any unlawful combination or confederacy, may mitigate the 
 punishment, so as it be not thereby reduced to less than one-third of 
 the punishment by the Act directed to be inflicted, whether by impris- 
 onment or fine. (<x) And it is provided, that any person who shall 
 be convicted or acquitted by any justice, upon a summary prosecution, 
 shall not afterwards be prosecuted by indictment, or otherwise, for 
 the same offence ; and in like manner that any person convicted, or 
 acquitted, upon an indictment, shall not afterwards be prosecuted 
 before any justice in a summary way. (&) But the Act is not to extend 
 to prevent any prosecution, by indictment or otherwise, for anything 
 which shall be an offence within the intent and meaning of the Act, 
 unless the offender shall have been prosecuted for such offence under 
 the Act, and convicted or acquitted of such offence, (c) 
 
 The 60 Geo. 3 & 1 Geo. 4, c. 1, (d~) s. 1, reciting that 'in some parts 
 of the United Kingdom men clandestinely and unlawfully assembled 
 had practised military training and exercise, to the great terror and 
 alarm of his Majesty's peaceable and loyal subjects, and the imminent 
 danger of the public peace,' enacts ' that all meetings and assemblies 
 of persons for the purpose of training or drilling themselves, or of 
 being trained or drilled to the use of arms, or for the purpose of 
 practising military exercise, movements, or evolutions, without any 
 lawful authority from his Majesty, or the lieutenant, or two justices of 
 the peace of the county or riding, or of any stewartry, by commission 
 or otherwise, for so doing shall be, and the same are hereby prohibited 
 as dangerous to the peace and security of his Majesty's liege subjects, 
 and of his government ; and every person who shall be present at, or 
 attend any such meeting or assembly for the purpose of training and 
 drilling any other person or persons, to the use of arms, or the practice 
 of military exercise, movements, or evolutions, or who shall train or 
 drill any other person or persons to the use of arms, or the practice of 
 military exercise, movements, or evolutions, or who shall aid or assist 
 therein, being legally convicted thereof, shall be liable to be trans- 
 ported (e) for any term not exceeding seven (/) years, or to be 
 punished by imprisonment not exceeding two years, at the discretion 
 of the Court in which such conviction shall be had ; and every person 
 who shall attend or be present at any such meeting or assembly as afore- 
 said, for the purpose of being, or who shall at any such meeting or 
 assembly be trained or drilled to the use of arms, or the practice of 
 military exercise, movements, or evolutions, being legally convicted 
 thereof, shall be liable to be punished by fine and imprisonment, not 
 
 of the 39 Geo. 3, c. 79, or the 57 Geo. 3, tended by 39 & 40 Vict. e. 32, s. 6, to a 
 
 c. 19, if in such society, or at such meeting, registered branch. 
 
 no business is transacted other than that (a) 39 Geo. 3, c. 79, s. 9. 
 
 which directly and immediately relates to (b) Sec. 10. 
 
 the objects of the society as declared in the (c) 39 Geo. 3, c. 79, s. 11. 
 
 registered rules thereof, but such society and (d) Sec. 5, from 'and the venue' to 
 
 all officers of the same shall, on request in 'thereupon,' so far as relates to Ireland, 
 
 writing liy two justices of the peace, give full and s. 8 of this Act are repealed by 36 & 
 
 information to such justices of the nature, 37 Vict. c. 91. 
 
 objects, proceedings, and practices of the (e) Penal servitude by the 20 & 21 Vict. 
 
 society, in default whereof the provisions of c. 3, s. 2. 
 
 the Acts in this section referred to shall, so (f) And not less than three years. See 
 
 tar as applicable, be in force in respect of 54 & 55 Vict. c. fi9. 
 
 such society. The word ' society ' is ex-
 
 chap, xxv.] Riots, Routs, and Unlawful Assemblies. 577 
 
 exceeding two years, at the discretion of the Court in which such con- 
 viction shall be had.' (g) 
 
 Where an indictment alleged that there was an unlawful meeting 
 of the defendant and of divers other persons unknown, for the purpose 
 of unlawfully practising military exercise, and which persons so met 
 and assembled were there without any lawful authority of the Queen, 
 &c, and that the defendant was present at and unlawfully did attend 
 the said meeting for the purpose of unlawfully training and drilling 
 divers persons unknown to the practice of military exercise ; Maule, J., 
 held that the indictment was not bad for charging two offences, (h) 
 
 An indictment upon this Act should aver that the meeting was for 
 the purpose of training and drilling, or of being trained and drilled to 
 the use of arms, or for the purpose of practising military exercises, 
 movements, or evolutions, and that the meeting was held without any 
 lawful authority from her Majesty, or the lieutenant, or two justices 
 of the peace, &c, by commission or otherwise, (i) 
 
 The 57 Geo. 3, c. 19, and 60 Geo. 3 & 1 Geo. 4, c. 6, contained many 
 enactments relating to assemblies of persons, collected for the pur- 
 pose, or under the pretext of deliberating on public grievances, and of 
 agreeing on petitions and addresses to the throne, or to the houses of 
 Parliament, which were only temporary enactments, and appear to 
 have now expired, or been repealed, (j) 
 
 But the 57 Geo. 3, c. 19, contains also several enactments relat- 
 ing to meetings and assemblies of persons which are not of a limited 
 duration. 
 
 Sec. 23, reciting, that it is highly inexpedient that public meetings 
 or assemblies should be held near the houses of Parliament, or near 
 the courts of justice in Westminster Hall, on certain days, enacts, that 
 it shall not be lawful for any person to convene, or to give any notice 
 for convening, any meeting consisting of more than fifty persons, or 
 for any number of persons exceeding fifty to meet in any street, square, 
 or open place, in the city or liberties of Westminster, or county of 
 Middlesex, within the distance of a mile from the gate of Westminster 
 Hall (except such parts of the parish of St. Paul's, Covent Garden, as 
 are within such distance), for the purpose of considering of or prepar- 
 ing any petition, &c, for alteration of matters in church or state, on 
 any day on which the two houses, or either house of Parliament, shall 
 meet and sit, nor on any day on which the courts shall sit in West- 
 minster Hall. And that if any meeting or assembly for such purposes 
 shall be assembled or holden on such day, it shall be deemed an un- 
 lawful assembly. But there is a provision that the enactment shall 
 not apply to any meeting for the election of members of Parliament, 
 or to persons attending upon the business of either house of Parlia- 
 ment, or any of the said courts. 
 
 Sec. 24 recites, that divers societies and clubs had been instituted in 
 the metropolis, and in various parts of the kingdom, of a dangerous 
 
 (g) Sec. 2 provides for the dispersion of within six months after the offence coin- 
 persons so assembled, or for their detention mitted. 
 
 and giving bail. By sees. 5 & 6, actions for (h) R. v. Hunt, 3 Cox, C. C. 215. 
 
 anything done in pursuance of the Act must (i) Gogarty v. R., 3 Cox, C. C. 306, Q. 
 
 be commenced within six months. And by B. (Ireland). 
 sec. 7 prosecutions for offences against the (j) See 36 & 37 Vict. c. 91. 
 
 provisions of the Act must be commenced 
 VOL. i. — 37
 
 578 Eiots, llouts, and Unlaivful Assemblies. [book ii. 
 
 nature and tendency, inconsistent with the public tranquillity and the 
 existence of the established government, laws, and constitution, of the 
 kingdom; and that the members of many such societies or clubs had 
 taken unlawful oaths and engagements of fidelity and secrecy, and had 
 taken or subscribed or assented to illegal tests and declarations ; and 
 that many of these societies or clubs appointed or employed commit- 
 tees, delegates, &c, to confer or correspond with other societies or 
 clubs, and to induce other persons to become members ; and by such 
 means maintained an influence over large bodies of men, and deluded 
 many ignorant and unwary persons into the commission of acts highly 
 criminal : and recites also, that certain societies or clubs, calling them- 
 selves Spenceans, or Spencean Philanthropists, professed for their ob- 
 ject the confiscation and division of the land, and the extinction of 
 the funded property of the kingdom ; and that it was expedient and 
 necessary that they should be utterly suppressed and prohibited as 
 unlawful combinations and confederacies highly dangerous to the 
 peace and tranquillity of the kingdom, and to the constitution of its 
 government ; and then it enacts, ' that all societies or clubs calling 
 themselves Spenceans, or Spencean Philanthropists, and all other so- 
 cieties or clubs, by whatever name or description the same are called 
 or known, who hold and profess, or who shall hold and profess, the 
 same objects and doctrines, shall be, and the same are hereby utterly 
 suppressed and prohibited, as being unlawful combinations and con- 
 federacies against the government of our sovereign lord the King, and 
 against the peace and security of his Majesty's liege subjects.' 
 
 Sec. 25. ' All and every the said societies or clubs, and also all and 
 every other society or club now established, or hereafter to be estab- 
 lished, the members whereof shall be required or admitted to take any 
 oath or engagement which shall be an unlawful engagement within 
 the meaning of the 37 Geo. 3, c. 123, (k) or within the meaning of the 
 52 Geo. 3, c. 104, (I) or to take any oath not required or authorized 
 by law ; and every society or club, the members whereof, or any of 
 them, shall take, or in any manner bind themselves by any such oath 
 or engagement, on becoming, or in order to become, or in consequence 
 of being a member or members of such society or club ; and every 
 society or club, the members or any member whereof shall be required 
 or admitted to take, subscribe, or assent to, or shall take, subscribe, or 
 assent to, any test or declaration not required or authorized by law, in 
 whatever manner or form such taking or assenting shall be performed, 
 whether by words, signs, or otherwise, either on becoming or in order 
 to become, or in consequence of being a member or members of any 
 such society or club ; and every society or club that shall elect, ap- 
 point, nominate, or employ any committee, delegate or delegates, repre- 
 sentative or representatives, missionary or missionaries, to meet, confer, 
 or communicate with any other society, or club, or with any committee, 
 delegate, or delegates, representative or representatives, missionary or 
 missionaries, of such other society or club, or to induce or persuade 
 any person or persons to become members thereof, shall be deemed 
 and taken to be unlaivful combinations and confederacies, within the 
 meaning of the 39 Geo. 3, c. 79, (m) and shall and may be prosecuted, 
 
 (k) Ante, p. 404. (m) Ante, p. 574, et seq. 
 
 (I) Ante, p. 574.
 
 chap, xxv.] Riots, Routs, and Unlawful Assemblies. 579 
 
 proceeded against, and punished, according to the provisions of the 
 said Act , and every person who, from and after the passing of this 
 Act shall become a member of any such society or club, or who, after 
 the passing of this Act, shall act as a member thereof, and every per- 
 son who, from and after the passing of this Act, shall directly or indi- 
 rectly maintain correspondence or intercourse with any such society or 
 club, or with any committee or delegate, representative or missionary, 
 or with any officer or member thereof, as such, or who shall, by con- 
 tribution of money, or otherwise, aid, abet, or support such society or 
 club, or any members or officers thereof, as such, shall be deemed guilty 
 of an unlawful combination and confederacy within the intent and 
 meaning of the 39 Geo. 3, c. 79, and shall and may be proceeded 
 against, prosecuted, and punished, according to the provisions of the 
 said Act, with regard to the prosecution and punishment of unlawful 
 combinations and confederacies.' (n) 
 
 Nothing contained in this Act is to extend to lodges of Freemasons, 
 complying with the regulations of the 39 Geo. 3, c. 79, (o) nor to any 
 declaration approved and subscribed by two or more justices of the 
 peace, and confirmed by the major part of the justices at a general 
 session, or at a general quarter-sessions of the peace, pursuant to the 
 regulations in the said Act of the 39 Geo. 3, c. 79 ; (o) nor to meeting 
 of Quakers ; nor to any meeting or society for purposes of a religious 
 or charitable nature only, and in which no other matter or business 
 shall be discussed. ( p) 
 
 Any person knowingly permitting any meeting of any society, 
 or club, declared by this Act to be an unlawful combination or con- 
 federacy, or of any division or committee of such society or club, to 
 be held in any place belonging to him, or in his possession or oc- 
 cupation, is made liable, for the first offence, to a forfeiture of five 
 pounds ; and for any offence committed after the conviction for such 
 first offence is to be deemed guilty of an unlawful combination and 
 confederacy in breach of this Act. (q) And two justices, upon evi- 
 dence on oath that any such meeting, or any meeting for any sedi- 
 tious purpose, has been held at any house, &c, licensed for the sale of 
 liquors, with the knowledge and consent of the persons keeping such 
 house, &c, may adjudge the licence to be forfeited, (r) 
 
 The thirtieth and three following sections relate to the recovery 
 of the pecuniary penalties, which may be incurred under the Act, then- 
 application and the limitation of actions against justices, &c, for any- 
 thing done in pursuance of the Act. Penalties exceeding £20 may 
 be received by action of debt ; and those not exceeding £20 may be 
 recovered before a justice in a summary way. (s) 
 
 By sec. 35, nothing contained in the Act shall be deemed to take 
 away, or abridge, any provision already made by the law of the 
 realm, for the suppression or punishment of any offence described in 
 the Act. 
 
 (n) Ante, p. 575. (r) Id. s. 29. S. 14 of the 39 Geo. 3, 
 
 (o) Ante, p. 575. c. 79, is similar, except that it does not 
 
 (p) 57 Geo. 3, c. 19, s. 26. See note (w), contain the words 'with the knowledge and 
 
 ante, p. 575. consent of the person keeping such house.' 
 
 (q) Id. s. 28. S. 13 of the 39 Geo. 3, &c. 
 
 c. 79, is nearly similar. (s) See note, ante, p. 575.
 
 580 Riots, Routs, and Unlawful Assemblies. [book ii. 
 
 Sec. 36, provides that no person prosecuted and convicted, or ac- 
 quitted, of any offence against the Act, shall be liable to be again 
 prosecuted for the same offence. 
 
 By sec. 37, where any proceeding or prosecution shall be instituted 
 for any offence against the 39 Geo. 3, c. 79, or this Act, either by action 
 or information, before any justice or justices, or otherwise, the attorney- 
 general in England, or the lord-advocate in Scotland, may order them 
 to be stayed ; and, in case of any judgment or conviction, one of his 
 Majesty's principal secretaries of state may, by an order under his 
 hand, stay the execution of such judgment or conviction, or mitigate, 
 or remit, any fine or forfeiture, or any part thereof, (t) 
 
 Several statutes have been passed for the purpose of regulating places 
 used for delivering lectures, and holding debates : but the enactments 
 contained in them are for the most part of limited duration. Many of 
 the sections of the 36 Geo. 3, c. 8, were intended to remedy the evil 
 occasioned by persons who, under pretence of delivering lectures and 
 discourses on public grievances, delivered lectures and discourses, and 
 held debates, tending to stir up hatred and contempt of the King's 
 person and government, and of the constitution : but this statute was 
 limited to a duration of three years from the passing of the Act, and 
 until the end of the then next session of Parliament, (u) It is referred 
 to in the 39 Geo. 3, c. 79, s. 15, which enactment is repealed by the 
 32 & 33 Vict. c. 24. 
 
 The law recognises no right of public meeting in any public thor- 
 oughfare, a public thoroughfare being dedicated to the public for no 
 other purpose than that of providing a means for the public of passing 
 and repassing along it. A place of public resort is analogous to a 
 public thoroughfare, and although the public may often have held 
 meetings in a place of public resort, without interruption by those who 
 have the control of such place, yet the public have no right to hold 
 meetings there for the purpose of discussing any question, whether 
 social, political, or religious. 
 
 A magistrate, being responsible for order in the district over which 
 he has control, and the Commissioner of the Police for the Metropolis 
 being the officer mainly responsible for the preservation of peace and 
 order in the metropolis, if a magistrate or such commissioner lazily, 
 stupidly, or negligently fails to take the precautions necessary to pre- 
 serve order, he can be proceeded against in a criminal court, and be 
 called upon to answer for his neglect of duty. Such an officer is 
 therefore fully justified in issuing a public notice to the effect that 
 public meetings will not be permitted to take place in any place of 
 public resort under his control, when he has reasonable grounds for 
 believing that a breach of the public peace is likely to result from 
 holding public meeting in such places. A public meeting held at a 
 place of public resort after the publication of such a notice is not, how- 
 ever, rendered unlawful merely by reason of such publication. 
 
 Where, therefore, the defendants had resisted the police by endeav- 
 ouring to break through their ranks in order to take part in a public 
 meeting in Trafalgar Square, a place of public resort within the me- 
 tropolis, which meeting had been prohibited by the Commissioner of 
 
 (0 Sec. 39. The Act does not extend to (w) See 32 & 33 Vict. c. 24. 
 
 Ireland.
 
 chap, xxv.] Riots, Routs, and Unlaivf id Assemblies. 581 
 
 Police for the Metropolis, and the holding of which the police had 
 received orders to prevent, it was held by Charles, J., that by the 
 operation of 7 & 8 Vict. c. 60, 14 & 15 Vict. c. 42, and 2 & 3 Vict. c. 47, 
 Trafalgar Square is placed under the control and supervision of the police 
 in the same manner as any street, thoroughfare, or public place, and 
 that, whether the defendants were guilty of participating in a riotous 
 assembly depended upon whether they, with others who were following 
 them, or who, as they expected, would follow them, approached the 
 square with the intention of holding a meeting, come what might, or 
 merely approached it with the intention of requesting to be allowed to 
 hold a meeting, and of departing if their request was refused. 
 
 He further held, that if the jury were satisfied that the defendants 
 headed a mob with the intention of getting to a place of public resort 
 if they could, and by doing so endangered the public peace and alarmed 
 reasonable people, they would be justified in finding them guilty of 
 rioting, (v) 
 
 Tumultuous petitioning. — The 13 Car. 2, c. 5, reciting the mischiefs 
 of tumultuous petitioning, enacts that no person shall solicit or pro- 
 cure the getting of hands or other consent of any persons above the 
 number of twenty, to any petition, &c, to the King or the houses of 
 Parliament, for alteration of matters established by law in church or 
 state, unless the matter thereof shall have been first consented unto 
 and ordered by three justices, or by the major part of the grand jury 
 of the county, &c, at the assizes or quarter sessions ; or, in London, by 
 the lord mayor, aldermen, and common council : and that no person 
 shall repair to his Majesty or the houses of Parliament, upon pretence 
 of presenting or delivering any petition, &c, accompanied with exces- 
 sive number of people, nor at any one time with above the number of 
 ten persons, upon pain of incurring a penalty not exceeding one hun- 
 dred pounds, and three months' imprisonment for every offence ; such 
 offence to be prosecuted in the Court of King's Bench, or at the as- 
 sizes or quarter sessions, within six months, and proved by two credible 
 witnesses, (w) But there is a proviso, that the Act shall not hinder 
 persons, not exceeding twenty in number, from presenting any public 
 or private grievance or complaint to any member of Parliament, or to 
 the King, for any remedy to be thereupon had : nor extend to any ad- 
 dress to his Majesty by the members of the houses of Parliament, 
 during the sitting of Parliament, (x) 
 
 Suppression of riots : By common law. — The common law, and 
 also several more ancient statutes than those which have been 
 mentioned, authorize proceedings for the restraining and suppres- 
 sion of riots. By the common law the sheriff, under-sheriff, con- 
 stable, or any other peace officer, may, and ought to do, all that 
 in them lies towards the suppressing of a riot, and may command 
 
 (y) R. v. Cunninghame Graham, 16 Cox, cutions for such petitioning are illegal.' It 
 
 C. C. 420. See also as to Trafalgar Square, was contended, that this article had virtually 
 
 Ex parte Lewis, 16 Cox, C. C. 449. repealed the statute 13 Car. 2, c. 5, hut Lord 
 
 (w) 13 Car. 2, st. 1, c. 5, s. 2. Mansfield declared it to be the unanimous 
 
 (x) 13 Car. 2, st. 1, c. 5, s. 3. By 1 opinion of the Court, that neither that nor 
 
 "Will. & M. sess. 2, c. 2, s. 1, art. 5, usually any other Act of Parliament had repealed it, 
 
 styled the Bill of Eights, it is enacted,' That and that it was in full force. R. v. Lord 
 
 it is the right of the subjects to petition the George Gordon, Dougl. 571. 
 King, and that all commitments and prose-
 
 582 Riots, Routs, and Unlawful Assemblies. [book ii. 
 
 all other persons to assist them ; and by the common law also any- 
 private person may lawfully endeavour to appease such disturbances 
 by staying the persons engaged from executing their purpose, and also 
 by stopping others coming to join them. (j/) It has been hoi den 
 also, that private persons may arm themselves in order to suppress a 
 riot ; (z) from whence it seems clearly to follow that they may also 
 make use of arms in suppressing it, if there be a necessity. However, 
 it may be very hazardous for private persons to proceed to these 
 extremities ; and such violent methods seem only proper against such 
 riots as savour of rebellion, (a) But if a felony be about to be com- 
 mitted, the interference of private persons will be justifiable ; for a 
 private person may do anything to prevent the perpetration of a 
 felony, (b) 
 
 Upon an information against the Mayor of Bristol for neglect of 
 duty in not suppressing the Bristol riots in 1831, which was tried at 
 the bar of the King's Bench, it was laid down that the general rules 
 of law require of magistrates, that at the time of riots, they should 
 keep the peace, restrain the rioters, and pursue and take them ; and to 
 enable them to do this, they may call on all the King's subjects to 
 assist them, which they are bound to do upon reasonable warning ; 
 and in point of law, a magistrate would be justified in giving firearms to 
 those who thus came to assist him, but it would be imprudent in him to 
 give them to those who might not know their use, and who might be 
 under no control, and who, not being used to act together, might be 
 cut off from the rest of the force, and the arms, by those means, get 
 into the hands of the rioters, (c) 
 
 It is no part of the duty of a magistrate to go out and head the 
 constables, or to marshal and arrange them ; neither is it any part of 
 his duty to hire men to assist him in putting down a riot ; nor to 
 keep a body of men, as a reserve, to act as occasion may require ; 
 neither is he bound to call out the Chelsea Pensioners, any more than 
 any of the rest of the King's subjects ; nor is it any part of his 
 duty to give any orders respecting the firearms in gunsmiths' shops. 
 Nor is a magistrate bound to ride with the military : if he gives the 
 military officer orders to act, that is all that is required of him. (d) 
 
 (y) 1 Hawk. P. C. c. 65, s. 11. lie may stop and prevent others whom he 
 
 (z) Case of arms, Poph. 121. Kel. 76. shall see coming up from joining the rest ; 
 
 (n) 1 Hawk. P. C. c. 65, s. 11. and not only has he the authority, but it is 
 
 (h) By Ohambre, J., in Handcock v. his bounden duty as a good subject of the 
 
 Baker, 2 Bos. & Pul. 265. King to perform this to the utmost of his 
 
 (c) R. v. Pinney, 5 C. & P. 254. 3 B. & ability. If the riot be general and dangerous, 
 
 Ad. 946, Littledale, Parke, and Taunton, JJ.; he may arm himself against the evil doers to 
 
 and see R. v. Kennet, 5 C. & P. 282. keep the peace.' ' It would undoubtedly be 
 
 ('/) R. v. Pinney, ibid. The duties of more prudent to attend, and be assistant to 
 
 private persons, soldiers, sheriffs, and peace the justices, sheriffs, or other ministers of 
 
 officers in such cases were expounded by the King in doing this ; for the presence and 
 
 Tindal, C. J., in his charge to the Bristol authority of the magistrate would restrain 
 
 grand jury [1832, 5 C. & P. 261] as fol- the proceeding to such extremities until the 
 
 lows : — ' By the common law every pri- danger were sufficiently immediate, or until 
 
 vate person may lawfully endeavour of his some felony was either committed, or could 
 
 own authority, and without any warrant or not be prevented without recourse to arms ; 
 
 sanction of the magistrate, to suppress a and at all events the assistance given by men 
 
 riot by every means in his power. He may who act in subordination and concert with 
 
 disperse, or assist in dispersing, those who the civil magistrate will be more effectual to 
 
 are assembled ; he ma)' stay those who are attain the object proposed than any efforts, 
 
 engaged in it from executing their purpose ; however well intended, of separated and dis-
 
 chap, xxv.] Riots, Routs, and Unlaivful Assemblies. 
 
 583 
 
 Suppression of riots : By statute. — The 34 Edw. 3, C. 1, em- 
 powers justices of the peace to restrain and arrest rioters ; and, 
 having been construed liberally, it has been resolved, that a single 
 justice may arrest persons riotously assembled, and may also au- 
 thorize others to arrest them by a parol command. By the 13 
 Hen. 4, c. 7, s. 1, the justices of the peace, three or two of 
 them at the least, and the sheriff or under-sheriff of the county 
 where any riot, assembly, or rout of people against the law shall be 
 made, shall come with the power of the county (if need be) to arrest 
 them ; and shall arrest them ; and shall have power to record that 
 which they shall find so done in their presence against the law : and 
 by such record the offenders shall be convicted in the same manner as 
 is contained in the statute of forcible entries, (c) In the interpreta- 
 tion of this statute it has been holden, that all persons, noblemen and 
 others, except women, clergymen, persons decrepit, and infants under 
 fifteen, are bound to attend the justices in suppressing a riot, upon 
 pain of fine and imprisonment ; and that any battery, wounding, or 
 killing the rioters, that may happen in suppressing the riot, is 
 justifiable. (/) 
 
 Indictment. — An indictment for a riot must show that there was 
 
 united individuals. But if the occasion 
 demands immediate action, and no opportu- 
 nity is given for procuring the advice or 
 sanction of the magistrate, it is the duty of 
 every subject to act for himself, and upon 
 his own responsibility in suppressing a 
 riotous and tumultuous assembly ; and he 
 may be assured that whatever is honestly 
 done by him in the execution of that object 
 will be supported and justified by the com- 
 mon law. The law acknowledges no 
 distinction in this respect between the soldier 
 and the private individual. The soldier is 
 still a citizen, lying under the same obliga- 
 tion, and invested with the same authority 
 to preserve the peace of the King as any other 
 subject. If the one is bound to attend the 
 call of the civil magistrate, so is the other ; 
 if the one may interfere for that purpose 
 when the occasion demands it, without the 
 requisition of the magistrate, so may the 
 other too ; if the one may employ arms for 
 that purpose, when arms are necessary, the 
 soldier may do the same. Undoubtedly the 
 same exercise of discretion which requires 
 the private subject to act in subordination to 
 and in aid of the magistrate, rather than 
 upon his own authority, before recourse is 
 had to arms, ought to operate in a stronger 
 degree with a military force. But where the 
 danger is pressing and immediate, where a 
 felony has actually been committed, or 
 cannot otherwise be prevented, and from the 
 circumstances of the case no opportunity is 
 offered of obtaining a requisition from the 
 proper authorities, the military subjects of 
 the King not only may, but are bound to do 
 their utmost, of their own authority, to pre- 
 vent the perpetration of outrage, to put 
 down riot and tumult, and to preserve the 
 
 lives and property of the people. Still fur- 
 ther, by the common law, not only is each 
 private subject bound to exert himself to the 
 utmost, but every sheriff, constable, and 
 other peace officer, is called upon to do all 
 that in them lies for the suppression of riot, 
 and each has authority to command all other 
 subjects of the King to assist him in that 
 undertaking. By an early statute (13 Hen. 
 4, c. 7) any two justices, with the sheriff or 
 under-sheriff of the county, may come with 
 the power of the county, if need be, to arrest 
 any rioters, and shall arrest them ; and they 
 have power to record that which they see 
 done in their presence against the law ; by 
 which record the offenders shall be convicted, 
 and may afterwards be brought to punish- 
 ment. And here I must distinctly observe, 
 that it is not left to the choice or will of the 
 subject, as some have erroneously supposed, 
 to attend or not to the call of the magistrate, 
 as they think proper, but every man is bound, 
 when called upon, under pain of fine and 
 imprisonment, to yield a ready and implicit 
 obedience to the call of the magistrate, ami to 
 do his utmost in assisting him to suppress any 
 tumultuous assembly.' See R. v. Neale, 9 C. 
 & P. 431, per Littledale, J. 
 
 (e) 5 R. 2, st. 1, c. 7. 
 
 (/") 4 Blac. Com. 146, 147. 1 Hale, 495. 
 The 17 R. 2, c. 8, and 2 Hen. 5, c. 8, relate 
 also to summary proceedings of justices, &c, 
 in cases of riots, which it is not thought 
 necessary to mention further in this work. 
 The different statutes and the construction 
 put upon them may be seen in 1 Hawk. P. C. 
 c. 65, s. 14, et seq. and Burn's Just. tit. 
 Riots, <L-c. See R. v. Gulston, 2 Lord Fiaym. 
 1210.
 
 58-1 liiots, Routs, and Unlawful Assemblies. [book ii. 
 
 an unlawful assembly of more than two persons, (y) In a case where 
 six persons being indicted for a riot, two of them died without being 
 tried, two were acquitted, and the other two were found guilty, the 
 Court refused to arrest the judgment, saying, that as the jury had 
 found two persons to be guilty of a riot, it must have been together 
 with those two who had never been tried, as it could not otherwise 
 have been a riot, (h) But two persons only cannot be guilty of a 
 riot, (i) Where the offence was special and laid as a riot, the riotose 
 extending to all the facts, and a battery of an individual stated in the 
 indictment being but part of the riot : it was held that the defendants 
 being acquitted of the riot were acquitted of the whole of which they 
 were indicted. But it was also held, that if the indictment had been, 
 that the defendants, with divers other disturbers of the peace, had 
 committed this riot and battery, the defendants might have been found 
 guilty of the battery, (j) 
 
 Before the 14 & 15 Vict. c. 100, s. 24, it was ruled in one case that 
 an indictment for a riot should conclude in terrorem populi : (&) but 
 in another case before that Act it was ruled that if such an indict- 
 ment charged the defendants with a riot and cutting down fences, they 
 might be convicted of an unlawful assembly, notwithstanding the want 
 of such a conclusion. (I) An indictment upon the 1 Geo. 1, st. 2, c. 5, 
 s. 1, for remaining assembled one hour after proclamation has been 
 made, need not charge the riot to have been in terrorem populi. (m) 
 
 Evidence. — Upon an indictment against H. Hunt and others, for a 
 conspiracy, and unlawful meeting together with persons unknown, 
 for the purpose of exciting discontent and disaffection, at which meet- 
 ing H. Hunt was the chairman, it was holden, that resolutions passed 
 at a former meeting assembled a short time before, in a distant place, 
 but at which H. Hunt also presided, and the avowed object of which 
 meeting was the same as that of the meeting mentioned in the indict- 
 ment, were admissible in evidence, to show the intention of H. Hunt 
 in assembling and attending the meeting in question. And it was 
 holden that a copy of these resolutions delivered by H. Hunt to the 
 witness at the time of the former meeting, as the resolutions then 
 intended to be proposed, and which corresponded with those which the 
 witness heard read from a written paper, was admissible, without pro- 
 ducing the original, (n) 
 
 In the same case it appeared, that large bodies of men had come to 
 the meeting in question from a distance, marching in regular order 
 resembling a military march : and it was holden to be admissible evi- 
 dence, to show the character and intention of the meeting, that within 
 two days of the time at which it took place considerable numbers 
 
 (g) R. v. Soley, 2 Salk. 593, 594. l (I) R. v. Hughes, 4 C. & P. 373, J. A. 
 
 (h) R. v. Scott and another, 3 Burr. 1262. Park, J. But see the 14 & 15 Vict. c. 100, 
 
 (i) R. v. Sadbury and others, 1 Lord s. 24. 
 
 Raym. 484 ; and see'l9 Vin. Abr. tit. Riots (I) R. v. Cox, 4 C. & P. 538, Patteson, J. 
 
 (E") 1. (m) R. v. James, 5 C. & P. 153, Patte- 
 
 0') R. v. Sadbury and others, 1 Lord son, J., MS. C. S. G. S. C. 
 
 Raym. 484. S. C. 2 Salk. 593, and 12 (n) R. v. Hunt, 3 B. & A. 566. 
 Mod. 262. 19 Vin. Abr. tit. Riots (E.) 6. 
 
 American Note. 
 1 See however Georgia Statutes, Rachels v. S., 51 Ga. 374. S. v. Kempf. 26 Mo. 429.
 
 cnAP. xxv.] Miots, Bouts, and Unlawful Assemblies. 585 
 
 were seen training and drilling before daybreak, at a place from which 
 one of these bodies had come to the meeting , and that, upon their 
 discovering the persons who saw them, they ill-treated them, and 
 forced one of them to take an oath never to be a king's man again; 
 And it was also admitted as evidence for the same purpose, that 
 another body of men in their progress to the meeting, on passing the 
 house of the person who had been so ill-treated, expressed their disap- 
 probation of his conduct by hissing, (o) 
 
 It was decided in this case, that parol evidence of inscriptions and 
 devices on banners and flags displayed at a meeting is admissible with- 
 out producing the originals, (j?) 
 
 And that upon the indictment in question evidence of the supposed 
 misconduct of those who dispersed the meeting was not admissible, (q) 
 
 Where the question was, with what intention a great number of 
 persons assembled to drill, declarations made by those assembled and 
 in the act of drilling, and further declarations made by others who 
 were proceeding to the place, and solicitations made by them to others 
 to accompany them declaratory of their object, were held to be admis- 
 sible in evidence for the purpose of showing their object, (r) 1 And 
 in general, evidence is admissible to show that the meeting caused 
 alarm and apprehension, and to prove information given to the civil 
 authorities, and the measures taken by them in consequence of such 
 information, (s) 
 
 It was held by the judges, (t) on the second commission of 1830, 
 1831, at Salisbury, that the prisoners must first be identified as form- 
 ing part of the crowd before the riot is proved, and the fifteen judges 
 confirmed the holding of the special commission. (%) But this is a 
 very inconvenient course, and causing much waste of time by recall- 
 ing witnesses ; and it has since been held that in riot, the prosecutor 
 is entitled to prove the acts of any of the rioters before he connects 
 the others with the riot, (y) and this is in conformity with the prac- 
 tice in cases of conspiracy, (w*) 
 
 Where several were indicted for a riot, it was moved, that the pro- 
 secutor might name two or three, and try it against them, and that 
 the rest might enter into a rule to plead not guilty (guilty if the 
 others were found guilty) ; and a rule was made accordingly ; this 
 being to prevent the charges in putting them all to plead, (x) 
 
 The punishment for offences of the nature of riots, routs, or unlawful 
 assemblies, at common law, is fine and imprisonment, in proportion to 
 the circumstances of the offence : (j/) and formerly, in cases of great 
 enormity, it appears that the offenders were sometimes punished with 
 
 (o) Id. ibid. 1 Lew. 300, where the same course was 
 
 (p) Id. ibid. adopted. 
 
 (q) Id. ibid. (v) R. v. Cooper, Stafford Summer Ass. 
 
 (r) Redford v. Birley, cor. Holroyd, J., 1850. Williams, J. MSS. C. S. G. 
 3 Stark. N. P. C. 76. (w) See ante, p. 491, 'Conspiracy.' 
 
 (s) Id. ibid. (a;) R. v. Middlemore, 6 Mod. 212. 
 
 It) Vaughan, B., Parke and Alderson, JJ. (y) 1 Hawk. P. C. c. 65, s. 12. 
 
 (u) Per Alderson, B., in Nicholson's case, 
 
 American Note. 
 1 As to the admissibility of this evidence in America see Patten v. P., 18 Mich. 314. 
 100 Am. D. 173.
 
 586 Riots, Routs, and Unlawful Assemblies. [book it. 
 
 the pillory ; (z) but such punishment is now taken away by the 56 
 Geo. 3, c. 138. 
 
 And by the 3 Geo. 4, c. 114, whenever any person shall be convicted 
 of a riot, ' it shall and may be lawful for the Court before which any 
 such offender shall be convicted, or which by law is authorized to pass 
 sentence upon any such offender, to award and order, if such Court 
 shall think fit, sentence of imprisonment, with hard labour, for any 
 term, not exceeding the term for which such Court may now imprison 
 for such offences, either in addition to or in lieu of any other punish- 
 ment which may be inflicted on any such offenders, by any law in 
 force before the passing of this Act ; and every such offender shall 
 thereupon suffer such sentence, in such place, and for such time as 
 aforesaid, as such Court shall think fit to direct.' 
 
 (z) Id. ibid.
 
 CHAPTER THE TWENTY-SIXTH. 
 
 OF AFFRAYS. 
 
 Affrays are the fighting of two or more persons in some public 
 place, 1 to the terror of his Majesty's subjects, (a) The derivation of 
 the word affray is from the French affrayer, to terrify ; and as in a 
 legal sense it is taken for a public offence to the terror of the people, it 
 seems clearly to follow that there may be an assault which will not 
 amount to an affray ; as where it happens in a private place, out of 
 the hearing or seeing of any except the parties concerned, in which 
 case it cannot be said to be the terror of the people, (b) Thus, where 
 two of the prisoners had fought together amidst a great crowd of per- 
 sons, and the others were present aiding and assisting, at a place a 
 considerable distance from any highway, and the fight ceased on the 
 appearance of some peace officers, it was held that this was not an 
 affray ; for an affray must occur in some public place, and this was to 
 all intents and purposes a private one. (c) And there may be an 
 affray which will not amount to a riot, though many persons be en- 
 gaged in it : as if a number of persons, being met together at a fair 
 or market, or on any other lawful or innocent occasion, happen on a 
 sudden quarrel to fall together by the ears, it seems agreed that they 
 will not be guilty of a riot, but only of a sudden affray, of which none 
 are guilty but those who actually engage in it ; and this on the ground 
 of the design of their meeting being innocent and lawful, and the sub- 
 sequent breach of the peace happening unexpectedly without any pre- 
 vious intention. (VZ) An affray differs also from a riot in this, that 
 two persons only may be guilty of it : whereas three persons at least 
 are necessary to constitute a riot, as has been shown in the preceding 
 chapter. 
 
 An affray may be much aggravated by the circumstances under 
 which it takes place, either — first, in respect of its dangerous ten- 
 fa) 4 Blac. Com. 144. 3 Inst. 158. to see the fight, they were all guilty of an 
 Burn's Just. tit. Affray, I. assault ; R. v. Perkins, 4 C. & P. 537, Pat- 
 
 (b) 1 Hawk. P. C. c. 63, s. 1. In 3 teson, J. An assembly for a prize fight is 
 Inst. 158, it is said that an affray is a public clearly an unlawful assembly, and where 
 offence to the terror of the King's subjects ; there is resistance to lawful authority exer- 
 and is an English word, and so called because cised for the purpose of putting a stop to it, 
 it affrighteth and maketh men afraid; and the offence may amount to an affray, or even 
 it is inquirable in a leet as a common a riot. R. v. Billingham, 2 C. & P. 234, 
 nuisance. Burrough, J. 
 
 (c) R. v. Hunt, 1 Cox, C. C. 177. Al- (d) 1 Hawk. P. C. c. 65, s. 3. 
 derson, B. If all the persons present went 
 
 American Note. 
 
 1 As to what is a public place in America Hawkens v. S., 13 Geo. 322 ; O'Neill v. S., 
 see Taylors. S., 22 Ala. 15. Words, how- 16 Ala. 65, but as to provocative language 
 ever violent, cannot constitute an affray, see S. v. Perry, 5 Jones (Law), 9.
 
 588 Of Affrays. [book ii. 
 
 dency ; secondly, in respect of the persons against whom it is com- 
 mitted ; or thirdly, in respect of the place in which it happens. 
 
 An affray may receive an aggravation from its dangerous tendency ; 
 as where persons coolly and deliberately engage in a duel which can- 
 not but be attended with the apparent danger of murder, and is not 
 only an open defiance of the law, but carries with it a direct contempt 
 of the justice of the nation, putting men under the necessity of right- 
 ing themselves, (e) And an affray may receive an aggravation from 
 the persons against whom it is committed ; as where the officers of 
 justice are violently disturbed in the due execution of their office, by 
 the rescue of a person legally arrested, or the bare attempt to make 
 such a rescue ; the ministers of the law being under its more immedi- 
 ate protection. (/) And further, an affray may receive an aggrava- 
 tion from the place in which it is committed ; it is therefore severely 
 punishable when committed in the King's courts, or even in the palace 
 yard near those courts ; and it is highly finable when made in the 
 presence of any of the King's inferior courts of justice. (#) And, 
 upon the same account also, affrays in a church or church-yard have 
 always been esteemed very heinous offences, as being very great in- 
 dignities to the Divine Majesty, to whose worship and service such 
 places are immediately dedicated. Qi) 
 
 It is said, that no quarrelsome or threatening words whatsoever can 
 amount to an affray ; and that no one can justify laying his hands on 
 those who shall barely quarrel with angry words, without coming to 
 blows : but it seems that a constable may, at the request of the party 
 threatened, carry the person who threatens to beat him before a justice, 
 in order to find sureties. And granting that no bare words, in the 
 judgment of law, carry in them so much terror as to amount to an 
 affray, yet it seems certain that in some cases there may be an affray 
 where there is no actual violence ; as where persons arm themselves 
 with dangerous and unusual weapons, in such a manner as will nat- 
 urally cause a terror to the people, which is said to have been always 
 an offence at common law, and is strictly prohibited by several 
 statutes. {%) 
 
 The principal of these statutes is 2 Edw. 3, c. 3, sometimes spoken 
 of as the statute of Northampton. It enacts, that no man, of what 
 condition soever, except the King's servants in his presence, and his 
 ministers in executing their office, and such as be in their company 
 assisting them, and also upon a cry made for arms to keep the peace, 
 shall come before the King's justices or other of the King's ministers 
 doing their office, with force and arms, nor bring any force in affray of 
 peace, (/) nor go nor ride armed, by night or day, in fairs or markets, 
 or in the presence of the King's justices, or other ministers, or else- 
 
 (e) 1 Hawk. P. C. c. 63, s. 21. This (h) 1 Hawk. P. C. c. 63, s. 23. And 
 
 would apply to such duels as were fought see post. Of Disturbances in Places of Publ ic 
 
 in ancient times ; and to such as have been Worship. 
 occasionally heard of, in more modern days, (i) Id. ibid. ss. 2, 4. 
 
 in neighbouring countries, fought amidst a (j) The words of the statute are en affrai 
 
 number of spectators. de la pecs. But Lord Coke, in 3 Inst. 158, 
 
 (/) 1 Hawk. P. C. c. 63, s. 22. And cites it as en affraurde la pais; and observes, 
 
 see post, chap, on Rescue, that the writ grounded upon the statute 
 
 (g) 1 Hawk, P. C. c. 21, ss. 6, 10 ; c. 63, says in quorundum de populo terrorcm, and 
 
 s. 23. As to striking in the courts of that therefore the printed book (en affray 
 
 justice, see post, Aggravated Assaults. de la peace) should be amended.
 
 chap, xxvi.] Of Affrays. 589 
 
 where ; upon pain to forfeit their armour to the King, and their bodies 
 to prison at the King's pleasure. The statute also provides, that the 
 King's justices in their presence, sheriffs, and other ministers in their 
 bailiwicks, lords of franchises and their bailiffs in the same, and 
 mayors and bailiffs of cities and boroughs within the same, and 
 borough-holders, constables, and wardens of the peace within their 
 wards, shall have power to execute the Act ; and that the judges 
 of assize may inquire and punish such officers as have not done 
 that which pertained to their office. (/>■) 
 
 In the exposition of the 2 Edw. 3, c. 3, it has been holden, that no 
 wearing of arms is within its meaning, unless it be accompanied with 
 such circumstances as are apt to terrify the people ; from whence it 
 seems clearly to follow, that persons of quality are in no danger of 
 offending against the statute by wearing common weapons, or hav- 
 ing their usual number of attendants with them for their ornament 
 or defence, in such places, and upon such occasions, in which it is the 
 common fashion to make use of them, without causing the least sus- 
 picion of an intention to commit any act of violence, or disturbance 
 of the peace. (I) And no person is within the intention of the statute 
 who arms himself to suppress dangerous rioters, rebels, or enemies, 
 and endeavours to suppress or resist such disturbers of the peace and 
 quiet of the realm, (m) But a man cannot excuse wearing such 
 armour in public by alleging that a person threatened him, and that 
 he wears it for the safety of his person from the assault : though no 
 one will incur the penalty of the statute for assembling his neigh- 
 bours and friends in his own house, against those who threaten to do 
 him any violence therein, because a man's house is as his castle, (n) 
 
 It may be useful to mention shortly the acts which may be done 
 for the suppression of an affray, by a private person, by a constable, 
 or by a justice of peace. 
 
 Suppression of affrays by a private person. — It seems to be agreed, 
 that any one who sees others fighting may lawfully part them, and 
 also stay them till the heat be over, and then deliver them to the 
 constable, who may carry them before a justice of peace, in order to 
 their finding sureties for the peace, (o) Any person present may 
 arrest the affrayer at the moment of the affray, and detain him till 
 his passion has cooled and his desire to break the peace has ceased, 
 and then deliver him to a peace officer ; and so any person may 
 arrest an affrayer after the actual violence is over, but whilst he 
 shows a disposition to renew it. Both cases fall within the same 
 principle, which is that for the sake of the preservation of the peace, 
 any individual who sees it broken, may restrain the liberty of him 
 
 {k) The 7 R. 2, c. 13, and 20 R. 2, c. 1, serve the peace, he shall have his remedy 
 
 enforcing this Act, are repealed by the 19 by an action against him ; and that upon 
 
 & 20 Vict. c. 64. the same ground it seems equally reason - 
 
 (/) 1 Hawk. P. C. c. 63, s. 9. able that if he unavoidably happen to hurt 
 
 (?n) Id. s. 10. either party, in thus doing what the law 
 
 (n) Id. s. 8, and see in ss. 5, 6, 7, as to both allows and commends, he may well 
 
 the proceedings of justices, &c, executing justify it ; inasmuch as he is no wny in 
 
 the Act. fault, and the damage done to the other 
 
 (o) 1 Hawk. P. C. c. 63, s. 11. Where was occasioned by a laudable intention to 
 
 it is said that from hence it seems clearly do him a kindness. See particularly the 
 
 to follow, that if a man receive a hurt from charge of Tindal, C. J., to the Bristol grand 
 
 either party, in thus endeavouring to pre- jury, ante, p. 582, note (d).
 
 590 Of Affrays. [book ii. 
 
 whom he sees breaking it, so long as his conduct shows that the 
 public peace is likely to be endangered by his acts. In truth, whilst 
 those are assembled together who have committed acts of violence, 
 and the danger of their renewal continues, the affray itself may be 
 said to continue : and during the affray, the constable may, not merely 
 on his own view, but on the information and complaint of another, 
 arrest the offenders, and of course the person so complaining is justi- 
 fied in giving the charge to the constable, (p) And it seems to be 
 clear that if either party be dangerously wounded in such an affray, 
 and a stander by, endeavouring to arrest the other, be not able to take 
 him without hurting or even wounding him, yet he is in no way liable 
 to be punished, inasmuch as he is bound, under pain of fine and impri- 
 sonment, to arrest such an offender, and either detain him till it appear 
 whether the party will live or die, or carry him before a justice of 
 peace. (<?) 
 
 Suppression of affrays by a constable. — A constable is not only 
 empowered, as all private persons are, to part an affray which hap- 
 pens in his presence, but is also bound, at his peril, to use his best 
 endeavours for this purpose : (r) and not only to do his utmost him- 
 self, but also to demand the assistance of others, which, if they refuse 
 to give him, they are punishable with fine and imprisonment. In 
 order to support an indictment against a person for refusing to 
 aid and assist a constable in the execution of his duty in quelling a 
 riot, it is necessary to prove: first, that the constable actually saw a 
 breach of the peace committed by two or more persons ; secondly, 
 that there was a reasonable necessity for the constable calling upon 
 other persons for their assistance and support ; and lastly, that the 
 defendant was duly called upon to render his assistance, and that, 
 without any physical impossibility or lawful excuse, he refused to 
 give it ; and whether the aid of the defendant, if given, would have 
 proved sufficient or useful, is not the question or criterion, (s) And 
 it is laid down in the books, that if an affray be in a house, the con- 
 stable may break open the doors to preserve the peace ; and if affrayers 
 fly to a house, and he follow with fresh suit, he may break open the 
 doors to take them, (t) And so far is the constable intrusted with a 
 power over all actual affrays, that though he himself is a sufferer by 
 them, and therefore liable to be objected against, as likely to be partial 
 in his own cause, yet he may suppress ; and therefore if an assault be 
 made upon him, he may not only defend himself but also imprison 
 the offender in the same manner as if he were in no way a party, (u) 
 It is said also, that if a constable see persons either actually engaged 
 in an affray, as by striking, or offering to strike, by drawing their 
 weapons, &c, or upon the very point of entering upon an affray, as 
 where one shall threaten to kill, wound, or beat another, he may 
 
 ( P ) See Timothy v. Simpson, 5 Tyrw. (/) 1 Hawk. P. C. c. 63, ss. 13, 16. But, 
 
 244. 1 C. M. & R. 757. qu., if a constable can safely break open the 
 
 (q) 1 Hawk. P. C. c. 63, s. 12, 3 Inst, doors of a dwelling house in such case, 
 
 158. without a magistrate's warrant. At least, 
 
 (r) See the charge of Tindal, C. J., ante, it should seem, there must be some circum- 
 
 p. 582, note (rl). stances of extraordinary violence in the 
 
 (a) R. v. Brown, C. & M. 314. See R. affray to justify him in so doing. 
 v. Sherlock, 35 L. J. M. C. 92. (u) Id. ibid. s. 15.
 
 chap, xxvi.] Of Affrays. 591 
 
 either carry the offender before a justice of the peace, to the end that 
 such justice may compel him to find sureties for the peace, &c, or he 
 may imprison him of his own authority for a reasonable time till the 
 heat be over, and also afterwards detain him till he find such surety 
 by obligation. But it seems that he has no power to imprison such 
 an offender in any other manner, or for any other purpose ; for he 
 cannot justify the committing an affrayer to gaol till he shall be pun- 
 ished for his offence ; and it is said that he ought not to lay hands on 
 those who barely contend with hot words, without any threats of 
 personal hurt : and that all which he can do in such a case is to com- 
 mand them, under pain of imprisonment, to avoid fighting, (v) 
 
 It has been doubted whether a private individual, who has seen an 
 affray committed, may give in charge to a constable who has not; 
 and whether such constable may, therefore, take into his custody the 
 affrayers, or either of them, in order to be carried before a justice, 
 after the affray has entirely ceased, after the offenders have quitted 
 the place where it was committed, and there was no danger of 
 renewal ; (w) but it seems now to be settled that a constable has no 
 power to arrest a man for an affray done out of his own view, without 
 a warrant from a justice of peace, (x) unless a felony be done or likely to 
 be done : for it is the proper business of a constable to preserve the peace, 
 not to punish the breach of it ; and where a breach of the peace has 
 been committed, and is over, the constable must proceed in the same 
 way as any other person, namely, by obtaining a warrant from a magis- 
 trate, (y) It is said (see ante, p. 392) that he may carry those before 
 a justice of peace who were arrested by such as were present at an 
 affray, and delivered by them into his hands, (z) Where the plaintiff 
 
 (v) 1 Hawk. P. C. c. 63, s. 14. many of the text-books state that to be the 
 
 (iv) See Timothy v. Simpson, 5 Tyrw. law. Burn's Just. 258, tit. Arrest, 26th 
 
 244. S. C. 1 C. M. &R. 757. The Court edit. Bac. Abr. (D.) tit. Trespass, 53. 
 
 did not decide the question. They observed, 2 East, P. C. 506. Hawk. P. C. b. 2, c. 13, 
 
 ' the power of a constable to take into his s. 8. 
 
 custody, upon a reasonable information of a (x) Cook v. Nethercote, 6 C. & P. 741, 
 
 private person under such circumstances, Alderson, B. Fox v. Gaunt, 3 B. & Ad. 
 
 and of that person to give in charge, must 798. R. v. Curvan, R. & M. C. C. R. 
 
 be correlative. Now, as to the authority 132. R. v. Bright, 4 C. & P. 387. R. v. 
 
 of a constable, it is perfectly clear that he Light, D. & B. C. C. 332. R. v. Walker, 
 
 is not entitled to arrest in order himself to Dears. C. C. 358. See these cases, post, 
 
 take sureties of the peace, for he cannot and Cohen v. Huskisson, 2 M. & W. 477. 
 
 administer an oath. Sharrock v. Hannemer, Bavnes v. Brewster, 2 Q. B. 375. Webster 
 
 Cro. Eliz. 375, Owen, 105, S. C. nom. Scar- v. Watts, 11 Q. B. 311. 
 rett v. Tanner. But whether he has that (//) Cook v. Nethercote, supra. See the 
 
 power in order to take before a magistrate, 2 & 3 Vict. c. 47, s. 65, the Metropolitan 
 
 that he may take sureties of the peace, is Police Act, as to the apprehension of per- 
 
 a question on which the authorities differ. sons on a charge of aggravated assault 
 
 Lord Hale seems to have been of opinion committed out of sight of a policeman. 
 that a constable has this power, 2 H. P. (z) 1 Hawk. P. C. c. 63, s. 17, citing 
 
 C. 89, and the same rule has been laid Lamb. 131, and Dalt. c. 8. Dalton says, 
 
 down at Nisi Prius by Lord Mansfield, in ' every private man, being present; may stay 
 
 a case referred to in 2 East, 306, and by the affrayers till their heat be over," and 
 
 Buller, J., in two others, one quoted in the then deliver them to the constables to im- 
 
 same place, and another cited in 3 Campb. prison them till they find surety for the 
 
 N. P. 421. On the other hand, there is a peace': which seems to imply that they 
 
 dictum to the contrary in Brooke's Abridg- may take them before a justice, in order 
 
 ment, tit. Faux Imprisonment , which is that they may find such sureties : and as 
 
 referred to and adopted by Lord Coke in it seems that the private individual might 
 
 2 Inst. 52 ; and Lord Holt, in 2 Lord Ray. take them for that purpose before a justice, 
 
 1301, R. v. Tooley, expresses the same it is but reasonable that the constables 
 
 opinion. Eyre, C. J., in Coupey v. Henley, should have the authority to take them 
 
 1 Esp. C. N. P. 540, does the same, and likewise. See ante, p. 589.
 
 592 Of Affrays. [book ii. 
 
 was imprisoned by a constable in a cell on a false charge of assault, 
 and the defendant, another constable, on hearing the charge from 
 a third constable, without inquiry into the facts, took the plaintiff 
 before the magistrates, it was held that the defendant, in order to 
 justify himself, was bound to show that the charge was well founded, 
 and having failed to do so. was liable to an action of trespass, (a) 
 
 Suppression of affrays by a justice of peace. — There is no doubt 
 but that a justice of peace may and must do all such things for 
 the suppression of an affray, which private men or constables are 
 either enabled or required by the law to do : but it is said that he 
 cannot, without a warrant, authorize the arrest of any person for an 
 affray out of his view. Yet it seems clear, that in such case he may 
 make his warrant to bring the offender before him, in order to compel 
 him to find sureties for the peace, (b) 
 
 Punishment of affrays. — The punishment of common affrays is by 
 fine and imprisonment ; the measure of which must be regulated by 
 the circumstances of the case : for where there is any material aggra- 
 vation, the punishment will be proportionably increased, (c) 
 
 (a) Griffin v. Coleman, 4H.&N. 265. (c) 4 Blac. Com. 145. 1 Hawk. P. C. 
 
 (b) 1 Hawk. P. C. c. 63, s. 19. c. 63, s. 20.
 
 CHAPTER THE TWENTY-SEVENTH. 
 
 OF CHALLENGING TO FIGHT. 
 
 It is a very high offence to challenge another, either by word or 
 letter, to fight a duel, or to be the messenger of such a challenge, or 
 even barely to endeavour to provoke another to send a challenge, or to 
 fight ; as by dispersing letters, for that purpose, full of reflections, and 
 insinuating a desire to fight, (a) And it will be no excuse for a party 
 so offending that he has received provocation : for as, if one person 
 should kill another, in a deliberate duel, under the provocation of 
 charges against his character and conduct ever so grievous, it will be 
 murder in him and his second ; the bare incitement to fight, though 
 under such provocation, is in itself a very high misdemeanor, though 
 no consequence ensue thereon against the peace, (b) Where, after a 
 prisoner had been convicted, his brother went to the house of the fore- 
 man of the jury, and challenged him to mortal combat, it was held 
 that this was a high contempt of the Court before which the trial was 
 held, and punishable as such, (c) 
 
 The offence of endeavouring to provoke another to send a challenge 
 to fight was much considered in one case, in which it was held to be 
 an indictable misdemeanor : and more especially as such provocation 
 was given in a letter containing libellous matter, and as the prefatory 
 part of the indictment alleged that the defendant intended to do the 
 party bodily harm, and to break the King's peace, (d) And the send- 
 ing such letter was held to be an act done towards the procuring the 
 commission of the misdemeanor meant to be accomplished, (e) In this 
 case, with respect to the intent of the defendant, the rule was adopted 
 that where an evil intent accompanying an act is necessary to consti- 
 tute such act a crime, the intent must be alleged in the indictment 
 and proved ; though it is sufficient to allege it in the prefatory part of 
 the indictment : but that where the act is in itself unlawful, the law 
 infers an evil intent ; and the allegation of such intent is merely 
 matter of form, and need not be proved by extrinsic evidence on the 
 part of the prosecution. (/) 
 
 (a) 1 Hawk. P. C. c. 63, s. 3. 3 Inst. ideas with respect to insult, in a letter to 
 158. 4 Blac. Com. 150. Hick's case, Hob. Mr. Jones, of last Monday's date, be suffi- 
 215. cient for me to tell you, that in the whole of 
 
 (b) R. v. Rice, 3 East, 581. the Carmarthenshire election business, as 
 
 (c) R. v. Martin, 5 Cox, C. C. 356, far as it relates to me, you have behaved like 
 Pigot, C. B., and Penefather, B. Martin a blackguard. I shall expect to hear from 
 was adjudged to a month's imprisonment, you on this subject, and will punctually 
 and to find sureties for keeping the peace attend to any appointment you may think 
 for seven years. proper to make.' 
 
 (d) R. v. Phillips, 6 East, 464. The (e) See ante, pp. 195, 196. 
 
 letter was : ' Sir, — It will, I conclude, from (/) R. v. Phillips, 6 East, 470 to 475. 
 
 the description you give of your feelings and 
 vol. i. — 38
 
 594 Of Challenging to Fight. [book ii. 
 
 It lias been considered that mere words of provocation, as ' liar ' and 
 ' knave,' though motives and mediate provocation for a breach of the 
 peace, yet do not tend immediately to the breach of the peace, like a 
 challenge to fight, or a threatening to beat another, {g) But words 
 which directly tend to a breach of the peace may be indictable ; as if 
 one man challenge another by words ; (h) and if it can be proved that 
 the words used were intended to provoke the party to whom they were 
 addressed to give a challenge, the case would seem to fall within the 
 same rule, (i) 
 
 In a case where a person wrote a letter with intent to provoke a 
 challenge, sealed it up, and put it into the twopenny post-office in a 
 street in Westminster, addressed to the prosecutor in the city of Lon- 
 don, by whom it was there received ; Lord Ellenborough, C. J., held 
 that the defendant might be indicted in Middlesex, as there was a 
 sufficient publication in that county by putting the letter into the 
 post-office there, with the intent that it should be delivered to the 
 prosecutor elsewhere ; and that if the letter had never been delivered, 
 the defendant's offence would have been the same, (k) 
 
 It may be observed, before this subject is concluded, that sending a 
 challenge is an offence for which the Court of Queen's Bench will 
 grant a criminal information : but in a case where it appeared, upon 
 the affidavits, that the party applying for an information had himself 
 given the first challenge, the Court refused to proceed against the 
 other party by way of information ; and left the prosecutor to his 
 ordinary remedy by action or indictment. (I) A rule to show cause 
 why such an information should not be granted has been made, upon 
 producing copies only of the letters in which the challenge was con- 
 tained, such copies being sufficiently verified, (m) 
 
 The punishment for this offence, as a misdemeanor, is discretionary, 
 and must be guided by such circumstances of aggravation or mitiga- 
 tion as are to be found in each particular case, (n) 
 
 (q) King's case, 4 Inst. 181. mitigate his offence) was sentenced to pay a 
 (h) R. i>. Langley, 6 Mod. 125, S. C. 2 fine of £100, and to be imprisoned for one 
 Lord Ray m. 1031. " calendar month, and at the expiration of that 
 (i) The rule given in 3 Inst. 158, is- — time to give security to keep the peace for 
 Quando aliquid prohibetur, prohibetur et three years, himself in £1,000 and two 
 omne per quod devenitur ad Mud. sureties in £250 each, and to be further im- 
 [k) R. v. Williams. 2 Campb. 506. prisoned till such fine was paid and such 
 (I) R. v. Hankey, 1 Burr. 316, where it securities given. Hawkins, speaking of the 
 is said that the Court held that it might have pernicious consequence of duelling, says, 
 been right to have granted cross informations, 'upon which considerations persons con- 
 in case each party had applied for an infor- victed of barely sending a challenge have 
 mation against the other. been adjudged to pay a hue of £100, and to 
 (m) R. v. Chappel, 1 Burr. 402. be imprisoned for one month without bail, 
 (n) R. v. Rice, 3 East, 584, in which case and also to make a public acknowledgment 
 the defendant (though he had undergone of their offence, and to be bound to their 
 some imprisonment, and though there were good behaviour.' 1 Hawk. P. C. c. 63, s. 21. 
 several circumstances tending materially to
 
 CHAPTER THE TWENTY-EIGHTH. 
 
 OF LIBEL AND INDICTABLE SLANDER. 1 
 
 Sec. I. 
 
 Definition. 
 
 It appears to be well settled that publications blaspheming God, or 
 turning the doctrines of the Christian religion into contempt and ridi- 
 cule, may be made the subject of indictment; and it is now fully 
 established, though some doubt seems formerly to have been enter- 
 tained upon the subject, that such immodest and immoral publica- 
 tions as tend to corrupt the mind, and to destroy the love of decency, 
 morality, and good order, are also offences at common law. (a) It is 
 also a misdemeanor wantonly to defame or indecorously to calumniate 
 that economy, order, and constitution of things which make up the 
 general system of the law and government of the country, (b) And it 
 is especially criminal to degrade or calumniate the person and charac- 
 ter of the sovereign, and the administration of his government by his 
 officers and ministers of state, (c) or the administration of justice by 
 his judges, (d) And the same policy which prohibits seditious com- 
 ments on the King's conduct and government extends, on the same 
 grounds, to similar reflections on the proceedings of the two Houses of 
 Parliament, (e) Such publications also as tend to cause animosities 
 between this country and any foreign state, by the personal abuse of 
 the sovereign of such state, his ambassadors, or other public ministers, 
 may be treated as libels. (/) With respect to libels upon individuals, 
 they have been defined to be malicious defamations, expressed either 
 in printing or writing, or by signs or pictures, tending either to blacken 
 the memory of one who is dead, or the reputation of one who is 
 alive, and thereby exposing him to public hatred, contempt, and 
 ridicule, (g) 
 
 {a) See the cases collected in 2 Starkie (/) R. v. Peltier, Holt on Libel, 78. R. 
 
 on Libel, 155. v. D'Eon, 1 Blac. R. 517. 
 
 lb) Holt on Libel, 82. {g) 1 Hawk. P. C. c. 73, ss. 1, 2, 3, 7; 
 
 (c) K. v. Lambert and Perry, 2 Campb. Bac. Abr. tit. Libel ; R. v. Yates, 12 Cox, 
 398. C. C. 233, and see as to libel by a picture, 
 
 (d) 2 Starkie on Libel, 194. Du Bost v. Beresford, 2 Campb. 511. As 
 (c) 2 Starkie on Libel, 202. to defaming one who is dead, see post. 629. 
 
 American Note. 
 
 1 See S. v. Cooper, 2 Denio, 293 ; C. v. v. Crosswell, 3 Johns. Cas. 337 ; S. v. 
 Clapp, 4 Mass. 163 ; Sharp v. C, 2 Binn. White, 7 Ired. N. C. 180 ; S. v. Lehre, 
 214 ; C. v. Kneeland, 20 Pick. 206 ; People 2 Brev. 446.
 
 596 Libel and Indictable Slander, [book ii. 
 
 Upon some of these subjects a publication by slander, or words 
 spoken only, though not properly a libel, (A) may be the subject of 
 criminal proceeding, as will be shown in the course of the chapter. 
 
 A libel may be as well by descriptions and circumlocutions as in 
 express terms, therefore scandal conveyed by way of allegory or irony 
 amounts to a libel. As where a writing, in a taunting manner, reck- 
 oning up several acts of public charity done by a person, said, ' You 
 will not play the Jew, nor the hypocrite? and then proceeded, in a 
 strain of ridicule, to insinuate that what the person did was owing 
 to his vainglory. Or where a publication, pretending to recommend 
 to a person the characters of several great men for his imitation, 
 instead of taking notice of what great men are generally esteemed 
 famous for, selected such qualities as their enemies accuse them of 
 not possessing (as by proposing such a one to be imitated for his 
 courage who was known to be a great statesman, but no soldier ; and 
 another to be imitated for his learning who was known to be a 
 great general, but no scholar) ; such a publication being as well 
 understood to mean only to upbraid the parties with the want of 
 these qualities as if it had done so directly and expressly. {%) And, 
 upon the same ground, not only an allegory, but a publication in 
 hieroglyphics, or a rebus or anagram, which are still more difficult to 
 be understood, may be a libel. (J) So a libel may be by asking 
 questions ; for if a man insinuates a fact in asking a question, mean- 
 ing thereby to assert it, it is the same thing as if he asserted it 
 in terms, (k) Formerly it was the practice to say that words were 
 to be taken in the more lenient sense ; but that doctrine is now 
 exploded ; they are not to be taken in the more lenient or more 
 severe sense, but in the sense which fairly belongs to them, and 
 which they were intended to convey. (/) 
 
 Upon the same principles it has been resolved that a defamatory 
 writing, expressing only one or two letters of a name, in such a man- 
 ner that from what goes before, and follows after, it must needs be 
 understood to signify a particular person, in the plain, obvious, and 
 natural construction of the whole, and would be nonsense if strained 
 to any other meaning, is as properly a libel as if it had expressed the 
 whole name at large. (m) 
 
 (h) A libel is termed Libellns famosus (I) By Lord Ellenborough, C. J., in R. 
 
 seu infamatoria scriptura, and has been v. Lambert and Perry, 2 Campb. 403. And 
 
 usually treated of as scandal, written or in a ease of libel, R. v. Watson and others, 
 
 expressed by symbols. Lamb. Sax. Law, 2 T. R. 206, Buller, J., said, ' Upon occa- 
 
 64. Bract, lib" 3, c. 36. 3 Inst. 174. 5 sions of this sort I have never adopted any 
 
 Co. 125. 1 Lord Raym. 416. 2 Salk. 417, other rule than that which has been fre- 
 
 418. Libel may be said to be a technical quently repeated by Lord Mansfield to juries, 
 
 word, deriving its meaning rather from its desiring them to read the paper stated to be 
 
 use than its etymology. ' There is no other a libel as men of common understanding, 
 
 name but that of libel applicable to the and say whether in their minds it conveys 
 
 offence of libelling ; and we know the offence the idea imputed.' See Woolnoth v. Mea- 
 
 specincally by that name, as we know the dows, 5 East, 463. 
 
 offences of horse-stealing, forgery, &c, by (m) 1 Hawk. P. C. c. 73, s. 5. Bac. 
 
 the names which the law has annexed to Abr. tit. Libel (A.) 3, where it is said in 
 
 them.' By Lord Camden in R. v. Wilkes, the marginal note that if an application 
 
 2 Wils. 121. is made for an information in a case of this 
 
 (i) 1 Hawk. P. C. c. 73, s. 4. Bac. Abr. kind, some friend to the party complaining 
 
 tit. Libel (A. ) 3. should, by affidavit, state the having read 
 
 (.;') Holt on Libel, 235, 236. the libel, and understanding and believing 
 
 (k) Gathercole's case, 2 Lewin, 255, per it to mean the party. See Dn Bost v. 
 
 Alderson, B. Beresford, 2 Campb. 512.
 
 chap, xxvni.] Libel and Indictable Slander. 597 
 
 An indictment lies for general imputations on a body of men, 
 though no individuals be pointed out, 1 because such writings have a 
 tendency to inflame and disorder society, and are therefore within tin- 
 cognizance of the law. (n) And scandal published of three or four per- 
 sons is punishable on the complaint of one or more, or all of them, (o) 
 
 It appears to have been considered that the remedies by action and 
 indictment for libels are co-extensive, and may be regarded as upon 
 the same footing. ( r p) 
 
 Formerly, upon an indictment or criminal prosecution for a libel 
 the party could not justify that its contents were true. But the 6 & 7 
 Vict. c. 96, permits a defendant to plead to any indictment or informa- 
 tion for a defamatory libel that the libellous matters are true, provided 
 it was for the public benefit that such matters should be published, (q) 
 The ground of the former rule, which still exists where no such plea 
 is pleaded, is, in the case of libels against religion, morality, or the 
 constitution, the public mischief, which libels are calculated to create 
 in alienating the minds of the people from religion and good morals, 
 and rendering them hostile to the government and magistracy of the 
 country ; and, where particular individuals are attacked, in causing 
 such irritation in their minds as may induce them to commit a breach 
 of the public peace. A libel against an individual may consist in the 
 exposure of some personal deformity, the actual existence of which 
 would only show the greater malice in the defendant ; and even if it 
 contain charges of misconduct founded in fact, the publication will 
 not be the less likely to produce a violation of the public tranquillity. 
 It has been observed, that the greater appearance of truth there may 
 be in any malicious invective, it is so much the more provoking ; and 
 that, in a settled state of government, the party grieved ought to com- 
 plain, for every injury done to him, in the ordinary course of law, and 
 not by any means to avenge himself by the odious proceeding of a 
 libel. (?') See further as to this, post, p. 626. 
 
 A party will not be excused by showing that the libel with which 
 he is charged was copied from some other work, even though he may 
 
 (n) Holt on Libel, 237. See Le Fanu (r) 1 Hawk. P. C. c. 73, s. 6. Bac. Abr. 
 
 v. Malcomson, 1 H. L. 637, post. tit. Libel (A.) 5. 4 Blac. Com. 150, 151. 
 
 (o) Id. ibid. In R. v. Benfield, 2 Burr. 2 Starkie on Libel, 251, et seq. Holt on 
 
 980, it was held that an information lay Libel, 275, et seq. But whilst the truth was 
 
 against two for singing a libellous song on no justification in a criminal prosecution, 
 
 A. and B., which first abused A. and then yet in many instances it was considered as 
 
 B. And it was said that if the defendants an extenuation of the offence ; and the Court 
 had sung separate stanzas, the one reflecting of King's Bench has laid down this general 
 on A. and the other on B., the offence would rule, that it will not grant an information 
 still have been entire. See R. v. Jenour, 7 for a libel unless the prosecutor who applies 
 Moil. 400. for it makes an affidavit asserting directly 
 
 (/>) Starkie on Libel, 150, 165, 550, 1st and pointedly that he is innocent of the 
 
 edir. Holt mi Libel, 215, 216. Bradley v. charge imputed to him. This rule, however. 
 
 Methuen, 2 Ford's MS. 78. This must be may be dispensed with if the person libelled 
 
 understood, however, of cases where the resides abroad, or if the imputations of the 
 
 libel, from its nature and subject, inflicts a libel are general and indefinite, or if it is a 
 
 private injury, and not of those cases in charge against the prosecutor for language 
 
 which the public only can be said to be which he has held in Parliament. 4 Blac. 
 
 affected by the libel. Com. 151, note (6). Dou<jl. 271, 372. R. 
 
 (q) See the Act, post, p. 647. v. Aunger, 12 Cox, C. C. 407. 
 
 American Note. 
 
 1 The same has been held in America. Ap. 442 ; Brenman v. Tracey, 2 Mo. Ap. 
 See Bishop ii. s. 934 ; S. v. Boogher, 3 Mo. 540.
 
 5'JS Privileged Communications. [book ii. 
 
 have stated it to be merely a copy, and disclosed the name of the 
 original author at the time of its publication, (s) 
 
 A wife cannot take criminal proceedings against her husband for 
 defamatory libel, (ss). 
 
 Sec. II. 
 Privileged Communications. 
 
 Petitions. — But there are some circumstances which will prevent 
 a publication from being deemed libellous. A petition to the King 
 to be relieved from doing what the King has directed the party to do, 
 if bond fide and in respectful terms, is no libel, though it call in ques- 
 tion the legality of the King's direction. James II. published a decla- 
 ration of liberty of conscience and worship to all his subjects, dispensing 
 with the oaths and tests prescribed by statutes 25 & 30 Car. II., and 
 directed that it should be read two days in every church and chapel 
 in the realm, and that the bishops should distribute it in their dio- 
 ceses that it might be so read. The Archbishop of Canterbury and 
 six bishops presented a petition to the King praying that he would 
 not insist upon their distributing and reading it, principally because it 
 was founded on such a dispensing power as had often been declared 
 illegal in Parliament, and that they could not in prudence, honour, or 
 conscience, so far make themselves parties to it as to distribute and 
 publish it. This petition was treated as a libel : they were taken up 
 and tried for it. The publication was proved ; and Wright, C. J., and 
 Allibone, J., thought it a libel: but Holloway and Powell, J J., thought 
 otherwise, there not being an ill intention of sedition in the bishops, 
 and the object of their petition being to free themselves from blame 
 in not complying with the King's command. The jury found them 
 not guilty, (t) 
 
 It has been resolved that no false or scandalous matter contained 
 in a petition to a committee of Parliament, or in articles of the peace 
 exhibited to justices of peace, or in any other proceeding in a regular 
 course of justice, will make the complaint amount to a libel ; for it 
 would be a great discouragement to suitors to subject them to public 
 prosecution in respect of their applications to a court of justice, (u) 
 Thus where the defendant, in a certain affidavit before the Court, had 
 said that the plaintiff in a former affidavit against the defendant had 
 sworn falsely, the Court held that this was not libellous ; for in every 
 dispute in a court of justice, where one by affidavit charges a thing 
 
 (s) De Crespignv v. Wellesley, 5 Bing. (><) 1 Hawk. P. C. c. 73, s. 8. Bac. 
 
 392. 2 M. & P. 695. See R. v. Sullivan, Abr. tit. Libel (A.) 4. And see the judg- 
 
 11 Cox, C. C. 4-1, (Irish); R. v. Newman, ment of Hoi royd, J., in Hodgson v. Scarlett, 
 
 post ; M'Pherson v. Daniels, 10 B. & C. 263 ; 1 B. & A. 232. It is holden by some that 
 
 Watkin v. Hall, 37 L. J. Q. B. 125. no want of jurisdiction in the court to which 
 
 (as) R. f. Lord Mayor of London, 16 Q. the complaint shall he exhibited will make 
 
 B. D. 772. it a libel ; because the mistake of the court 
 
 (t) Case of the Seven Bishops, 12 St. Tri. is not imputable to the party, but to his 
 
 183 ; and see post, as to communications counsel ; see 1 Hawk. P. C. c. 73, s. 8, 1 
 
 made bona fide, and in the proper course of Starkie on Libel, 254, 2nd edit, 
 proceedings in courts of justice, &c.
 
 CHAP. XXVIII.] Libel and Indictable Slander. 599 
 
 and the other denies it, the charges must be contradictory, and there 
 must be affirmation of falsehood, (v) No presentment of a grand jury 
 can be a libel, not only because persons who are supposed to be re- 
 turned without their own seeking, and are sworn to act impartially, 
 shall be presumed to have proper evidence for what they do, but also 
 because it would be of the utmost ill consequence in any way to dis- 
 courage them from making their inquiries with that freedom and readi- 
 ness which the public good requires, (w) Where an action was brought 
 against the president of a military court of inquiry for a libel con- 
 tained in the minutes of such court, which had been delivered by the 
 defendant to the commander-in-chief and deposited in his office, it was 
 held that these minutes were a privileged communication, and properly 
 rejected when tendered at the trial in proof of the alleged libel ; and 
 also that a copy of them had been properly rejected, (x) And where 
 a court-martial, after stating in their sentence the acquittal of an 
 officer against whom a charge had been preferred, subjoined thereto a 
 declaration of their opinion, that the charge was malicious and ground- 
 less, and that the conduct of the prosecutor in falsely calumniating 
 the accused was highly injurious to the service, it was held that the 
 president of the court-martial was not liable to an action for a libel 
 for having delivered such sentence and declaration to the judge-advo- 
 cate ; and Mansfield, C. J., in delivering his opinion, said : ' If it appear 
 that the charges are absolutely without foundation, is the president of 
 the court-martial to remain perfectly silent on the conduct of the 
 prosecutor, or can it be any offence for him to state that the charge is 
 groundless and malicious ? ' (y) 
 
 It having been reported that the plaintiff, an officer in the army, had 
 made charges against his brother officers, the commander-in-chief 
 directed that a court of inquiry should be assembled, who should 
 inquire into the matter and report thereon to the commander-in-chief. 
 A court was held, at which the defendant, an officer in the army, was 
 required to attend as a witness. Being examined as a witness he gave 
 viva voce evidence, and then handed in a paper containing in substance 
 a repetition of his evidence, with some additions upon the subject, and 
 this paper was received by the court. A report was made by the court 
 to the commander-in-chief. The plaintiff applied for a court-martial 
 upon the defendant for such his conduct towards the plaintiff. The 
 application was not acceded to, and the plaintiff brought an action 
 against the defendant, in respect of the written paper as a libel, and in 
 respect of the viva voce evidence as slander. The judge at the trial 
 ruled that the action would not lie if the verbal and written statements 
 complained of were made by the defendant, being a military officer, in 
 the course of a military inquiry in relation to the conduct of the plain- 
 tiff, he being also a military officer, and with reference to the subject 
 of the inquiry, although the defendant had acted maid fide, and with 
 actual malice, and without any reasonable and probable cause, and with 
 
 (v) Astleyr. Younge, 2 Burr. 817. Revis (w) 1 Hawk. P. C. c. 73, s. 8. Bac. Abr. 
 
 v. Smith, 18 C. B. 126. Henderson v. tit. Libel (A.). 
 
 Broomhead, 4 H. &K 569, cases of malicious (x) Home v. Lord F. C. Bentinck, 4 
 
 and false affidavits. See Fitzjohn v. Mack- Moore, 563. 
 
 inder, 9 C. B. (X. S.) 505 ; Doyle v. {y) Jekyll v. Sir John Moore, 2 X. R 
 
 O'Doherty, C. & M. 418. 341.
 
 600 Privileged Communications. [book ii. 
 
 a knowledge that the statement made and handed in by him as afore- 
 said was false. A bill of exceptions having been tendered : Held, that 
 this ruling as to the law was correct. Held, also, that the evidence of 
 the defendant was but a parcel of the minutes of the proceedings of the 
 Court, which, when reported and delivered to the commander-in-chief, 
 was received and held by him on behalf of the sovereign, and as such 
 was inadmissible in evidence, (z) 
 
 Proceedings in Parliament and courts of justice. — The members of 
 the two houses of Parliament, by reason of their privilege, are not an- 
 swerable at law for any personal reflections on individuals contained 
 in speeches in their respective houses ; for policy requires that those 
 who are by the constitution appointed to provide for the safety and 
 welfare of the pilblic, should, in the execution of their high functions, 
 be wholly uninfluenced by private considerations, (a) 
 
 Thus the actual proceedings in courts of justice and in Parliament 
 are exempted from being deemed libellous ; it becomes important to 
 inquire in the next place how far the same privilege will be extended 
 to communications of those proceedings to the public, made with im- 
 partiality and correctness. 
 
 In Wason v. Walter, 4 L. K Q. B. 73, 38 L. J. Q. B 34, Cockburn, 
 C. J., in delivering the judgment of the Court said, that faithful 
 and fair reports of the proceedings of courts of justice, though the 
 character of individuals may incidentally suffer, are privileged, and 
 that for the publication of such reports the publishers are neither 
 criminally nor civilly responsible, (b) But a publication of the pro- 
 ceedings in a court of justice will not be protected unless it be a true 
 and honest statement of those proceedings, (c) And it has been said 
 that it must not be taken for granted that the publication of every 
 matter which passes in a court of justice, however truly represented, 
 is, under all circumstances and with whatever motive published, justi- 
 fiable ; and that such doctrine must be taken with grains of allow- 
 ance, (d) And Lord Ellenborough, C. J., said, ' It often happens that 
 circumstances necessary for the sake of public justice to be disclosed 
 by a witness in a judicial inquiry are very distressing to the feelings 
 of individuals on whom they reflect; and if such circumstances were 
 afterwards wantonly published, I should hesitate to say that such 
 unnecessary publication was not libellous merely because the matter 
 had been given in evidence in a court of justice.' (e) In a subsequent 
 case, not relating directly to this point, but to the publication of pro- 
 fa;) Dawkins v. Lord Rokeby, 42 L. J. Q. Pull. 523. A defence that the matter corn- 
 B. 63, Ex. Ch. et per Kelly, C. B., no action plained of is so privileged, can be given in 
 lies against parties or witnesses for anything evidence under not guilty. 
 said or done, although falsely and mali- (c) Waterfield v. The Bishop of Chi- 
 
 ciously, and without any reasonable or Chester, 2 Mod. 118. R. v. Wright, 8 T. 
 probable cause, in the ordinary course of any Rep. 297, 298, per Lawrence, J. Stiles v. 
 proceedings in a court of justice. Affirmed Nokes, 7 East, 493 ; Wason v. Walter, 38 
 in H. L. 45, L. J. Q. B. 8. L. J. Q. B. 34. 
 
 («) Holt on Libel, 190. 1 Starkie on (d) By Lord Ellenborough, C J., and 
 
 Libel, 239. R. v. Lord Abingdon, 1 Esp. Grose, J., in Stiles v. Nokes, 7 East, 503. 
 Rep. 226. By 4 Hen. 8, c. 3, members of (e) Ibid. And see R. v. Salisbury, 1 
 
 Parliament are protected from all charges Lord Raym. 341, that it is indictable to 
 against them for anything said in either publish a scandalous petition to the House 
 House ; and this is further declared in the of Lords, or a scandalous affidavit made in a 
 Bill of Rights, 1 Will. & M. st. 2, c. 2. court of justice. 
 
 (jb) See also Curry v. Walter, 1 Bos. &
 
 chap. xxvui.J Libel and Indictable Slander. 001 
 
 ceedings in Parliament, Bayley, J., said, ' It lias been argued that the 
 proceedings of courts of justice are open to publication. Against that, 
 as an unqualified proposition, I enter my protest. Suppose an indict- 
 ment for blasphemy, or a trial where indecent evidence was neces- 
 sarily introduced ; would every one be at liberty to poison the minds 
 of the public, by circulating that which for the purposes of justice 
 the Court is bound to hear ? I should think not : and it is not true, 
 therefore, that in all instances the proceedings of a court of justice 
 may be published.' (/) This doctrine was recognised and acted upon 
 in a later case. The defendant's husband had been convicted of pub- 
 lishing a blasphemous libel, after having in his defence at the trial 
 used arguments and statements of a blasphemous and indecent de- 
 scription. His wife published the trial ; and, upon showing cause 
 against a rule for a criminal information, it was urged that she had a 
 right to publish what actually took place in a court of justice; but 
 the Court were clear she had not, if that statement contained any- 
 thing seditious, blasphemous, or indecent : and the rule was made abso- 
 lute, (g) And where it is allowable to publish what passes in a court 
 of justice it is not essential that every word of the evidence, of the 
 speeches, and of what was said by the judge, should be inserted ; if the 
 report is substantially a fair and correct report of what took place in 
 a court of justice, it is privileged. (]i) It may sometimes not be jus- 
 tifiable to publish everything a counsel says in the course of his 
 speech, (i) but no action will lie against a barrister for words spoken 
 by him in a cause, which are pertinent to the matter in issue, (f) And 
 an attorney acting as an advocate has the same privilege. (A.) 
 
 The party making the publication will not be justified, unless he 
 confines himself to what actually passed in court. (7) Before the case 
 of Wason v. Walter was decided, it was an established principle, upon 
 which the privilege of publishing a report of any judicial proceedings 
 was admitted to rest, that such report must be strictly confined to the 
 actual proceedings in court, and must contain no defamatory obser- 
 vations or comments from any quarter whatever, in addition to what 
 formed strictly and properly the legal proceedings. But perhaps it 
 will now be considered that a fair comment upon any matter of public 
 interest is privileged, (m) 
 
 Proceedings before magistrates, under the 11 & 12 Yict. c. 43, with 
 respect to summary convictions and orders, in which, after both par- 
 ties are heard, a final judgment is given, are strictly of a judicial na- 
 ture, and the trial and the judgment may lawfully be made the subject 
 of a printed report, if that report be impartial and correct; (ii) and 
 
 (/) R. v. Creevev, 1 M. & S. 281. (0 Per Bayley, J, Flint v. Pike, 4 P.. & 
 
 (g) R. v. Carlisle, 3 B. & A. 167 ; Steele C. 473. 6 D. & R. 52S. Per Holroyd, .1.. 
 
 v. Brannan, 41 L. J. M. C. 85, where a report ibid, and per Tindal, C. J. Roberts v. 
 
 of proceedings in a court of justice was held Brown, 10 Bing. 519 ; Saunders v. Mills, 6 
 
 not to be privileged, as the same was offen- Bing. 213. S. C. 3 M. & P. 520 ; R. v. 
 
 sive to public decency. Creevey, 1 M. & Sel. 281. 
 
 (h) Andrews i'. Chapman, 3 C. & K. 286, (j) Hodgson v. Scarlett, 1 B. & Aid. 232. 
 
 Lord Campbell, C. J. See Smith v. Scott, (k) Mackay v. Ford, 5 H. & N. 792. 
 
 2 C. & K. 580. Hoare v. Silverlock, 9 C. B. (/) Delegal r. Highley, 3 B. X. C. 950. 
 
 20. See Lewis v. Walter, 4 B. & A. 645. (m) Delegal V. Highley, 3 B. N. C. 950 ; 
 
 As to publisbing a judgment alone see Mac- Lewis v. Clement, 3 B. & A. 702. 
 
 dougall v. Knight, '] 7 Q. B. D. 636 ; 14 Ap. («) Lewis v. Lew, E. B. & E. 537. 
 
 Cas. 194 ; 25 Q. B. D. 1.
 
 602 Privileged Communications. [book ii. 
 
 the like privilege extends to the publication of proceedings taking 
 place publicly before a magistrate on the preliminary investigation of a 
 charge of an indictable offence, terminating in the discharge of the 
 party charged, although there were several hearings, and separate 
 publications as to each hearing ; (o) and it has now been decided that 
 the publication of such preliminary inquiries is lawful in all cases, (p) 
 It was at one time said that such publications had a tendency to cause 
 great mischief by perverting the public mind, and disturbing the 
 course of justice. (<?) And the Court of King's Bench has granted a 
 criminal information for publishing in a newspaper a statement of the 
 evidence given before a coroner's jury, accompanied with comments ; 
 although the statement was correct, and the party had no malicious 
 motive in the publication, (r) But in Wason v. Walter, 38 L. J. 
 Q. B. 34, Cockburn, C. J., whilst delivering the judgment of the Court, 
 is reported to have said, 'Even in quite recent days, judges, in holding 
 the publication of the proceedings of courts of justice lawful, have 
 thought it necessary to distinguish what are called ex parte proceed- 
 ings as a probable exception from the operation of the rule. Yet ex 
 r partc proceedings before magistrates, and even before this Court, as, 
 for instance, applications for criminal informations, are published 
 every day ; but such a thing as an action or indictment, founded 
 on a report of such an ex parte proceeding, is unheard of, and if any 
 such action or indictment should be brought, it would probably be 
 held that the true criterion of the privilege is not whether the report 
 was, or was not, ex parte, but whether it was a fair and honest report 
 of what had taken place, published simply with a view to the infor- 
 mation of the public, and innocent of all intention to do injury to the 
 reputation of the party effected.' And it has been more recently held 
 that if the report of judicial proceedings is fair and impartial, the 
 privilege is not taken away by the fact that the magistrate decided 
 that he had no jurisdiction, or that the application was made ex 
 parte, (s) 
 
 The examination of a prisoner in gaol by the registrar in bank- 
 ruptcy, under the 101st section of the Bankruptcy Act, 1861, is a 
 public judicial proceeding, and therefore a fair and correct report, 
 without comment, of the examination is privileged, even though it 
 may contain statements which injuriously affect the character of a 
 third person, (f) 
 
 Proceedings at public meetings. — It was formerly held that a fair 
 report in a newspaper of what takes place at a public meeting, if it 
 contain matter defamatory of an individual, is not privileged, but 
 by the Libel Act, 1888, (51 & 52 Vict. c. 64), s. 3, < a fair and. accurate 
 report in any newspaper (u) of proceedings publicly heard before any 
 
 (0) Ibid. cannot be justified. M'Gregor ». Thwaites 
 
 (//) Kimber v. Press Association, 1893, and another, 3 B. & C. 24 ; 4 D. & R. 695. 
 
 1 Q. B. 65. (r) R. v. Fleet, 1 Barn. & Aid. 379. See 
 
 (?) R. v. Lee, 5 Esp. 123. R. v. Fisher, East v. Chapman, M. & M. 46. 2 C. & P. 
 
 2 Campb. 563. Duncan v. Thwaites, 3 B. & 570 ; Charlton v. Watton, 6 C. & P. 835 ; 
 C. 556. 5 D. &R. 447. Delegal v. High- R. v. Gray, 10 Cox, C. C. 184. 
 
 ley, 3 B. N. C. 950 ; but see the remarks in (s) Usill v. Hales, 3 C. P. D. 319. 
 
 Lewis v. Levy, supra. The publication of a (/) Ryalls v. Leader, 35 L.J. Ex. 185; 
 
 matter which was not brought before the L. R. Ex. 296. 
 
 magistrate in his judicial character, or in the (") ' The word " newspaper " shall mean 
 
 regular discharge ofhis magisterial functions, any paper containing public news, intelli-
 
 chap, xxviii.] Libel and Indictable Slander. 603 
 
 court exercising judicial authority shall, if published contemporane- 
 ously with such proceedings, be piivileged, provided, that nothing in 
 this section shall authorise the publication of any blasphemous or 
 indecent matter. 
 
 By sec. 4. ' A fair and accurate report published in any newspaper 
 of the proceedings of a public meeting, or (except where neither the 
 public nor any newspaper reporter is admitted) of any meeting of a 
 vestry, town council, school board, board of guardians, board or local 
 authority formed or constituted under the provisions of any Act of 
 Parliament, or of any committee appointed by any of the above-men- 
 tioned bodies, or of any meeting of any commissioners authorised to 
 act by letters patent, Act of Parliament, warrant under the Eoyal 
 Sign Manual, or other lawful warrant or authority, select committees 
 of either House of Parliament, justices of the peace in quarter ses- 
 sions assembled for administrative or deliberative purposes, and the 
 publication at the request of any Government office or department, 
 officer of State, commissioner of police or chief constable of any notice 
 or report issued by them for the information of the public, shall be 
 privileged, unless it shall be proved that such report or publication 
 was published or made maliciously. Provided, that nothing in this 
 section shall authorise the publication of any blasphemous or indecent 
 matter. Provided also that the protection intended to be afforded by 
 this section shall not be available as a defence in any proceeding if it 
 shall be proved that the defendant has been requested to insert in the 
 newspaper in which the report or other publication complained of 
 appeared a reasonable letter or statement by way of contradiction or 
 explanation of such report or other publication, and has refused or 
 neglected to insert the same ; Provided further, that nothing in this 
 section contained shall be deemed or construed to limit or abridge 
 any privilege now by law existing or to protect the publication of 
 which is not for the public benefit.' 
 
 For the purposes of this section ' public meeting ' shall mean any 
 meeting bona fide and lawfully held for a lawful purpose and for the 
 furtherance or discussion of any matter of public concern, whether 
 the admission thereto be general or restricted. 
 
 By sec. 7. ' It shall not be necessary to set out in any indictment 
 or other judicial proceeding instituted against the publisher of any 
 obscene libel the obscene passages, but it shall be sufficient to deposit 
 the book, newspaper, or other documents containing the alleged libel 
 together with particulars showing precisely, by reference to pages, 
 columns, and lines, in what part of the book, newspaper, or other doc- 
 ument the alleged libel is to be found, and such particulars shall be 
 deemed to form part of the record, and all proceedings may be taken 
 thereon as though the passages complained of had been set out in the 
 indictment or judicial proceedings. 
 
 By sec. 8 no criminal prosecution (v) shall be commenced against 
 
 gence, or occurrences, or any remarks or to be dispersed and made public weekly or 
 observations therein printed, for sale and oftener, or at intervals not exceeding twenty- 
 published in England or Ireland periodically, six days, containing only or principally 
 or in parts or numbers, at intervals not advertisements.' 44 & 45 Viet. c. 60, s. 1. 
 exceeding twenty-six days between the pub- (v) This section seems not to apply to 
 lication of any two such papers, parts, or criminal informations for libel filed by tin' 
 numbers. Also any paper printed in order Court at the instance of private prosecutors.
 
 004 
 
 Privileged Communication*. 
 
 [book ii. 
 
 any proprietor, (w) publisher, editor or any person responsible for the 
 publication of a newspaper for any libel published therein without 
 the order of a judge at Chambers being first had and obtained. Such 
 application shall be made on notice to the person accused who shall 
 have an opportunity of being heard against such application. 
 
 By sec. 9. ' Every person charged with the offence of libel before 
 any court of criminal jurisdiction, and the husband or wife of the per- 
 son so charged shall be competent, but not compellable witnesses on 
 every hearing at every stage of such charge.' 
 
 If a report made by a medical officer of health to a vestry board, 
 in pursuance of the Metropolitan Local Management Act (18 & 19 
 Vict. c. 120), contains libellous matter, a newspaper proprietor is not 
 justified in publishing it. (y) 
 
 Reports of debates in Parliament. — The publication of a faithful 
 report of a debate in either house of Parliament is privileged, so that 
 the publisher is not responsible for defamatory statements made in the 
 course of the debate so reported and published, and the publication 
 of articles fairly commenting upon the debate so reported and pub- 
 lished is equally privileged, (z) The printing and delivering a petition 
 to members of a committee of the House of Commons, being accord- 
 ing to the order of proceedings of Parliament and their committees, 
 has been held to be justifiable, (a) 
 
 R. v. Yates, 11 Q. B. D. 750 ; 14 Q. B. D. 
 
 648. Such informations are, however, only 
 granted at the suit of persons in some public 
 office or position. The information would he 
 refused to a foreigner, or to the representative 
 of a deceased person. R. v. Labouchere, 12 
 Q. B. D. 320. 
 
 (iv) By 44 & 45 Vict. c. 60, s. 1, 'The 
 word " proprietor " shall mean and include as 
 well the sole proprietor of any newspaper as 
 also in the case of a divided proprietorship 
 the persons who, as partners or otherwise, 
 represent and are responsible for any share 
 or interest in the newspaper as between 
 themselves and the persons in like manner 
 representing or responsible for the other 
 shares or interests therein, and no other 
 person.' 
 
 (y) Popham v. Pickburn, 7H.&N. 891. 
 
 (2) Wason v. Walter, 38 L. J. Q. B. 34, 
 et per cur., " Our judgment will in no way 
 interfere with the decisions that the publica- 
 tion of a single speech for the purpose or 
 with the effect of injuring an individual will 
 be unlawful, as was held in the cases of R. 
 v. Lord Abingdon, 1 Esp. 225, and R. ^>. 
 Creevey, 1 M. & S. 273. At the same time 
 it may be as well to observe that we are dis- 
 posed to agree with what was said in David- 
 son v. Duncan, 7 E. & B. 232, as to such a 
 speech being privileged if bond fide published 
 by a member for the information of his con- 
 stituents. But whatever would deprive a 
 report of the proceedings in a court of justice 
 of immunity will equally apply to a report 
 of proceedings in Parliament. We pass on 
 to the second branch of this rule, which lias 
 reference to alleged misdirection in respect 
 
 of the second count of the declaration, which 
 is founded on the article in the Times, com- 
 menting on the debate in the House of Lords; 
 and the conduct of the plaintiff in preferring 
 the petition which gave rise to it. We are 
 of opinion that the direction given to the 
 jury was perfectly correct. The publication 
 of the debate having been justifiable, the jury 
 were property told that the subject was, for 
 the reasons we have already adverted to, 
 pre-eminently one of public interest, and 
 therefore one on which public comment and 
 observation might properly be made ; and 
 that consetpiently the occasion was privileged 
 in the absence of malice. As to the latter, 
 the jury were told that they must be satis- 
 fied that the article was an honest and fair 
 comment on the facts ; in other words, that, 
 in the first place, they must be satisfied that 
 the comments had been made with an honest 
 belief in their justice ; but that this was not 
 enough, inasmuch as such belief might 
 originate in the blindness of party zeal, or in 
 personal or political aversion, that a person 
 taking upon himself publicly to criticize and 
 to condemn the conduct or motives of 
 another must bring to the task not only an 
 honest sense of justice, but also a reasonable 
 degree of judgment and moderation, so that 
 the result may be what a jury shall deem 
 under the circumstances of the case a fair 
 and legitimate criticism on the conduct and 
 motives of the party who is the object of 
 censure. See Henwood v. Harrison. 41 L. J. 
 C. P. 206. 
 
 (") Lake v. King, 1 Saunil. 131. See the 
 judgment of Lord Ellenborough, C. J., in R. 
 v. Creevey, 1 M. & S. 278.
 
 chap, xxviii.] Libel and Indictable Slander. 605 
 
 It was decided upon demurrer in a case, wliicli underwent great 
 consideration, that it is no defence in law to an action for publishing 
 a libel, that the defamatory matter is part of a document which was, 
 by order of the House of Commons, laid before the House, and there- 
 upon became part of the proceedings of the House, and which was 
 afterwards, by orders of the House, printed and published by the 
 defendant ; and that the House of Commons had theretofore resolved, 
 ' that the power of publishing such of its reports, votes, and proceed- 
 ings, as it shall deem necessary or conducive to the public interests, 
 is an -essential incident to the constitutional functions of Parliament, 
 more especially to the Commons' House of Parliament, as the repre- 
 sentative portion of it.' (b) 
 
 In consequence of this decision the 3 & 4 Vict. c. 9 was passed, 
 which by Sec. 1, reciting, ' whereas it is essential to the due and 
 effectual exercise and discharge of the functions and duties of Parlia- 
 ment, and to the promotion of wise legislation, that no obstructions 
 or impediments should exist to the publication of such of the reports, 
 papers, votes, or proceedings of either House of Parliament as such 
 House of Parliament may deem fit or necessary to be published : And 
 whereas obstructions or impediments to such publication have arisen, 
 and hereafter may arise, by means of civil or criminal proceedings 
 being taken against persons employed by or acting under the authority 
 of the Houses of Parliament, or one of them, in the publication of 
 such reports, papers, votes, or proceedings ; by reason and for remedy 
 whereof it is expedient that more speedy protection should be afforded 
 to all persons acting under the authority aforesaid, and that all such 
 civil or criminal proceedings should be summarily put an end to and 
 determined in manner hereinafter mentioned : ' enacts, ' that it shall 
 and may be lawful for any person or persons who now is or are, or 
 hereafter shall be, a defendant or defendants in any civil or criminal 
 proceeding commenced or prosecuted in any manner soever, for or on 
 account or in respect of the publication of any such report, paper, 
 votes, or proceedings by such person or persons, or by his, her, or their 
 servant or servants, by or under the authority of either House of 
 Parliament, to bring before the Court in which such proceeding shall 
 have been or shall be so commenced or prosecuted, or before any 
 judge of the same (if one of the superior Courts of Westminster), 
 first giving twenty-four hours' notice of his intention so to do to the 
 prosecutor or plaintiff in such proceeding, a certificate under the hand 
 of the Lord High Chancellor of Great Britain, or the Lord Keeper 
 of the Great Seal, or of the Speaker of the House of Lords, for the 
 time being, or of the Clerk of the Parliaments, or of the Speaker of 
 the House of Commons, or of the Clerk of the same House, staling 
 that the report, paper, votes, or proceedings, as the case may be, in 
 respect whereof such civil or criminal proceeding shall have been 
 commenced or prosecuted, was published by such person or persons, 
 
 (b) Stockdale v. Hansard, 9 A. & E. 1, better preventing treasonable and seditious 
 
 2 P. & D. 1. See Wason v. Walter, supra, practices) s. 28, nothing in this Act con- 
 
 per Cockburn, C. J. ; Henwood v. Harrison, tained shall extend or be construed to extend 
 
 41 L. J. C. P. 206, per Willes, J., ' By 39 to any papers printed by the authority and 
 
 Geo. 3, c. 79, (An Act for the more effectual for the use of either House of Parliament.' 
 
 suppression of societies established for sedi- See 32 & 33 Vict. c. 24. 
 tious and treasonable purposes ; and for
 
 606 Privileged Communications. [book ii. 
 
 or by his, her, or their servant or servants, by order or under the 
 authority of the House of Lords or of the House of Commons, as the 
 case may be, together with an affidavit verifying such certificate ; and 
 such court or judge shall thereupon immediately stay such civil or 
 criminal proceeding, and the same, and every writ or process issued 
 therein, shall be and shall be deemed and taken to be finally put an 
 end to, determined and superseded by virtue of this Act.' (c) 
 
 Sec. 2. ' In case of any civil or criminal proceeding hereafter to 
 be commenced or prosecuted for or on account or in respect of the 
 publication of any copy of such report, paper, votes, or proceedings, 
 it shall be lawful for the defendant or defendants at any stage of the 
 proceedings to lay before the court or judge such report, paper, votes, 
 or proceedings, and such copy, with an affidavit verifying such report, 
 paper, votes, or proceedings, and the correctness of such copy, and the 
 court or judge shall immediately stay such civil or criminal proceed- 
 ing, and the same, and every writ or process issued therein, shall be 
 and shall be deemed and taken to be finally put an end to, determined, 
 and superseded by virtue of this Act.' 
 
 Sec. 3. ' It shall be lawful in any civil or criminal proceeding to be 
 commenced or prosecuted for printing any extract from or an abstract 
 of such report, paper, votes, or proceedings, to give in evidence under 
 the general issue such report, paper, votes, or proceedings, and to 
 show that such extract or abstract was published bond fide and 
 without malice ; and if such shall be the opinion of the jury a 
 verdict of not guilty shall be entered for the defendant or defendants.' 
 
 Sec. 4. 'Nothing herein contained shall be deemed or taken, or held 
 or construed, directly or indirectly, by implication or otherwise, to 
 affect the privileges of Parliament in any manner whatsoever.' 
 
 Fair Criticism. — A publication commenting upon a literary work, 
 exposing its follies and errors, and holding up the author to ridicule, 
 will not be deemed a libel, provided such comment does not exceed 
 the limits of fair and candid criticism, by attacking the character of 
 the writer, unconnected with his publication, {d) But if a person 
 under the pretence of criticising a literary work, defames the private 
 character of the author, and, instead of writing in the spirit and for 
 the purpose of fair and candid discussion, travels into collateral mat- 
 ter, and introduces facts not stated in the work, accompanied with 
 injurious comments upon them, such person is a libeller, (c) So if a 
 reviewer imputes base, sordid, dishonest, and wicked motives, it is no 
 answer that the reviewer published only what he believed was correct 
 and true. (/) A fair and candid comment on a place of public enter- 
 
 (c) The Act is imperative upon the Court alleged libel exceeds the limits of fair criti- 
 to stay proceedings. Stockdale v. Hansard, cism, he should, unless the contrary appears 
 11 A. & E. 297. 3 P. & D. 346. on the face thereof, put in his work as part 
 
 (d) Carr v. Hood, 1 Campb. 355. And of his case (S. C. and see 4 F. & F. 939). 
 in an action for a libel upon the plaintiff (e) Nightingale v. Stockdale, 49 Geo. 3, 
 in his business of a bookseller, accusing him cor. Ellenborough, C. J. Selw. N. P. 1044. 
 of being in the habit of publishing immoral It is lawful to animadvert upon the conduct 
 and foolish books, the defendant, under of a bookseller in publishing books of an 
 the plea of not guilty, may adduce evidence improper tendency. Tabart v. Tipper, 1 
 to show that the supposed libel is a fair Campb. 354. And see Herriott v. Stuart, 1 
 stricture upon the general run of the plain- Esp. 437, and Stuart v. Lovell, 2 Stark. R. 
 tiff's publications. Tabart v. Tipper, 1 93. 
 
 Campb. 350 ; Strauss v. Francis, 4 F. & F. (f) Campbell v. Spottiswoode, 31 L. J. 
 
 1107. If the plaintiff contends that the Q. B. 185. 3 B. & S. 769.
 
 ciiAr. xxvin.] Libel and Indictable Slander. 607 
 
 tainment, in a newspaper, is not a libel, {g) And there is no distinction 
 between a handbill, circular, or advertisement of a tradesman and a 
 book ; both are literary productions, and are addressed to the public, 
 and both are subject to such comments as do not exceed the bounds 
 of fair and reasonable criticism, (h) 
 
 It has been doubted whether the preaching a sermon, in the ordi- 
 nary mode of a clergyman's duty, makes it public property, so as to 
 allow observations upon it in the same way that a publication of a 
 literary work does.(i) 
 
 A fair comment in a newspaper upon the conduct of a person at- 
 tending a meeting, 1 held for the purpose of hearing a candidate at a 
 parliamentary election, was held to be privileged. (J) 
 
 Confidential communications. — Confidential communications are in 
 some cases privileged : as where it was holden that a letter written 
 confidentially to persons who employed A. as their solicitor, conveying 
 charges injurious to his professional character in the management of 
 certain concerns which they had entrusted to him, and in which B., 
 the writer of the letter, was likewise interested, was not a libel, (k) And 
 if a person, in a private letter to the party, should expostulate with 
 him about some vices, of which he apprehends him to be guilty, and 
 desire him to refrain from them ; or if a person should send such a 
 letter to a father, in relation to some faults of his children ; these, it 
 seems, would not be considered as libellous, but as acts of friendship, 
 not designed for defamation but reformation. (I) But this doctrine 
 must be applied with some caution ; since the sending an abusive 
 letter filled with provoking language to another, is an offence of a 
 public nature, and punishable as such, inasmuch as it tends to create 
 ill blood, and cause a disturbance of the public peace ; (m) and the 
 reason assigned by Lord Bacon, why such private letter should be 
 punishable, seems to be a very sufficient one, namely, that it enforces 
 the party to whom the letter is directed to publish it to his friends, 
 and thus induces a compulsory publication, (n) And though a letter 
 written by a master, in giving a character of a servant, will not be 
 libellous, unless its contents be not only false but malicious ; (o) yet 
 
 ((j) Dibden v. Swan, 1 Esp. N. P. C. 28 ; Cator, 2 East, R. 361. Thorley v. Lord 
 
 and see also Ashley v. Harrison, 1 Esp. N. Kerry, 4 Taunt. 355. In the last case the 
 
 P. C. 48. Peake. N. P. C. 194. letter was unsealed, and opened and read by 
 
 {h) Paris v. Levy, 9 C. B. (N. S.) 342. the bearer. 
 
 (i) Gathercole v. Mian, 15 M. & W. 319. (>i) Poph. 189, cited in Holt on Libel, 
 
 See Kelly v. Tinling, 35 L. J. Q. B. 231, 222. 
 noticed post. (p) Weatherstone v. Hawkins, 1 T. R. 
 
 (j) Davies v. Duncan, 43 L. J. C. P. 110. Edraondson v. Stephenson, Bull. N. 
 
 185. P. 8. Child v. Affleck, 9 B. & C. 403. 4 M. 
 
 (k) M'Dougall v. Claridg, 1 Campb. & R. 338. Manby v. Witt, 18 C. B. 544. 
 
 267. Wright v. Woodate, 1 T. & G. 12. Taylor v. Hawkins, 16 Q. B. 308. Sorner- 
 
 (l) Peacock v. Sir George Reynell, 2 ville v. Hawkins, 10 C. B. 583. Gardener 
 
 Brownl. 151, 152. Bac. Abr. tit. Libel (A.) v. Slade, 13 Q. B. 796. Croft v. Stevens, 
 
 2, in the notes. 6 H. & N. 570. 
 
 (m) Bac. Abr. tit. Libel (B. ) 2. R. v. 
 
 American Note. 
 
 1 It would seem that in America "it is concerning his " (the candidate's) "fitness, 
 the duty of all good citizens to communicate and the newspaper is the proper channel." 
 to the voters " (at an election) "information Bishop ii. s. 937(5).
 
 608 Privileged Communications. [book ii. 
 
 in such a case malice may be inferred from the circumstances, (p) 
 But where a tradesman's wife being informed that one of the female 
 assistants was dishonest wrote her a letter accusing her of theft and 
 reproaching her, Huddleston, B., held the occasion privileged, and said 
 that if the prisoner honestly believed what she wrote, the manner in 
 which she expressed herself ought not to be too nicely criticised, (f>p) 
 
 Where a writer is acting on any duty, legal or moral, towards the 
 person to whom he writes, or where he has by his situation to protect 
 the interests of another, that which he writes under such circum- 
 stances is a privileged communication, if he writes it bond fide. If, 
 therefore, a tenant be desired by his landlord to make communications 
 to him in respect of any neglect of duty in his gamekeepers, any 
 communication made by him in respect of any such neglect of duty 
 is privileged, if written bond fide, and on the supposition that he was 
 doing his duty to his landlord, (q) The plaintiff was the agent of the 
 defendants, a trading company, and it was part of his duty to furnish 
 them with an account of his transactions, to enable them to prepare 
 the balance-sheet for the inspection of the shareholders. This balance- 
 sheet was prepared and duly referred to the auditors, who reported 
 that there was a deficiency, for which the plaintiff was responsible, 
 and that his accounts had been badly kept. There was evidence that 
 an explanation had been offered to the auditors, which they had dis- 
 regarded, but no evidence that the directors had any knowledge of 
 this explanation. The directors, after laying the accounts before a 
 general meeting of the shareholders, caused a letter containing the part 
 of the report which affected the character of the plaintiff to be printed 
 and forwarded to the absent shareholders : Held, first, that this letter 
 was published on a privileged occasion, as it was the duty of the 
 defendants to communicate to all the shareholders any part of the report 
 of the auditors which materially affected the accounts of the com- 
 pany ; secondly, that there was no intrinsic or extrinsic evidence of 
 malice to be left to the jury, as the report of the auditors was pub- 
 lished without comment, and the explanations offered to. the auditors 
 did not come before the defendants ; and that causing the letter to be 
 printed was a reasonable and necessary mode of publishing it to the 
 absent shareholders, (r) 
 
 If a man bond fide writes a letter in his own defence, and for 
 the defence of his rights and interests, and is not actuated by any 
 malice, that letter is privileged, although it may impute dishonesty to 
 another, (s) 
 
 A letter published by an attorney honestly in vindication of the 
 character of a client against charges published and circulated against 
 the client by the prosecutor, is privileged, (t) 
 
 Sending defamatory matter by a post-office telegram is an unauthor- 
 ized publication which prevents a communication from being privileged 
 
 (p) Rogers v. Sir G. Clifton, 3 Bos. & (r) Lawless v. The Anglo-Egyptian 
 
 Pul. 587. Patteson v. Jones, 8 B. & C. 578. Cotton and Oil Company, 38 L. J.Q. B. 
 
 3 M. & R. 101. Kelly v. Partington, 4 B. 129. 
 
 & Ad. 700. 2 Nev. & M. 460. (s) Coward v. Wellington, 7 C. & P. 531. 
 
 (pp) R. v. Perry, 15 Cox, C. C. 169. Littledale, J., see Whitelev v. Adams, infra. 
 
 (q) Cockayne v. Hodgkinson, 5 C. & P. (t) R. v. Veley, 4 F. & F. 1117. 
 543, Parke, B.
 
 chap, xxviii.] Libel and Indictable Slander. 609 
 
 though made bona fide, and under circumstances which otherwise would 
 have made it privileged, (u) 
 
 Any one, in the transaction of business with another, has a right to 
 use language bond fide, which is relevant to that business, and which 
 a due regard to his own interest makes necessary, even if it should 
 directly or by its consequences be injurious or painful to another ; and 
 this is the principle upon which privileged communication rests ; but 
 defamatory comments on the motives or conduct of the party with 
 whom he is dealing do not fall within that rule, (v) But the privilege, 
 which protects a communication, must result from a right to discuss 
 the particular matter in respect of which the alleged libel is pub- 
 lished ; nothing else can be privileged. Where, therefore, remarks 
 were made reflecting on a Roman Catholic priest at a public meeting 
 called for the purpose of petitioning Parliament against the grant to 
 the Roman Catholic College at Maynooth, it was held that the speaker 
 was not justified by the circumstance that the libel was published in 
 the course of a bond fide discussion respecting the propriety of support- 
 ing that college, (w) 
 
 Communications in discharge of a duty. — Although that which is 
 written may be injurious to the character of another, yet if done bond 
 fide, or with a view of investigating a fact in which the party making 
 it is interested, it is not libellous. Thus where an advertisement 
 was published by the defendant at the instigation of A., the plaintiff's 
 wife, for the purpose of ascertaining whether the plaintiff had another 
 wife living when he married A., it was holden that although the ad- 
 vertisement might impute bigamy to the plaintiff, yet having been 
 published under such authority, and with such a view, it was not 
 libellous, (x) 
 
 A communication fairly made by a person in the discharge of some 
 public (j/) or private duty, whether legal or moral, or in the conduct 
 of his own affairs, in matters where his interest is concerned, is a 
 privileged communication, (z) And if the communication be made 
 in the regular and proper course of a proceeding, it will not be libel- 
 lous. As where a writing, containing the defendant's case, and stat- 
 ing that some money, due to him from the government for furnishing 
 the guard at Whitehall with fire and candle, had been improperly 
 obtained by a Captain C, was directed to a general officer and the four 
 principal officers of the Guards, to be presented to his Majesty for re- 
 dress, an information was refused, on the ground that the writing was 
 no libel, but a representation of an injury drawn up in a proper way 
 for redress, without any intention to asperse the prosecutor ; and that 
 
 (u) Williamson v. Frere, 43 L. J. C. P. 850. 1 C. M. & R. 150. Wright v. Wood- 
 
 161. gate, 2 C. M. & R. 573. 1 T. & G. 12. 
 
 (v) Per curiam, Tuson v. Evans, 12 A. Coxhead v. Richards, 2 C. B. 569. When 
 
 & E. 733. See Whiteley v. Adams, 33 L. J. the occasion is privileged the burden of 
 
 C. P. 89 ; 15 C. B. N. S. 392. proof is on the plaintiff to show that the 
 (w) Hearne v. Stowell, 12 A. & E. 719. defendant did not honestly believe his state- 
 fa;) Delany v. Jones, 4 Esp. 191. Lay v. ments to be true. If he did honestly believe 
 
 Lawson, 4 A. & E. 795. them to be true the defendant can claim 
 
 (y) Henwood v. Harrison, 41 L. J. M. C. privilege although he had no reasonable 
 
 206. grounds for such belief. Clark v. Molyneux, 
 
 (z) Toogood v. Spyring, 4 Tyrw. 582. 3 Q. B. D. 237 ; 47 L. J. Q. B. 230. But 
 
 1 C. M. & R. 181. See Spencer v. Amerton, see 6 & 7 Vict. c. 96, s. 6 ; post, p. 64S. 
 
 1M.& Rob. 470. Warren v. Warren, 4 Tyrw. 
 vol. i. — 39
 
 (J 10 Privileged Communications. [book II. 
 
 though there was a suggestiuu of fraud, yet that is no more than is 
 contained in every bill in Chancery, which is never held libellous if 
 relative to the subject-matter, (a) So a petition addressed by a credi- 
 tor of an officer in the army to the Secretary-at-War, bond fide, and 
 with the view of obtaining, through his interference, the payment of 
 a debt due, and containing a statement of facts which, though deroga- 
 tory to the officer's character, the creditor believed to be true, is not a 
 malicious libel for which an action is maintainable, (i) A letter writ- 
 ten to the Postmaster-General, or to the Secretary to the General Post- 
 Office, complaining of misconduct in a postmaster, or guard of a mail, 
 is not a libel, if it was written as a bond fide complaint to obtain re- 
 dress for a grievance that the party really believed he had suffered, (c) 
 And where the defendant being deputy-governor of Greenwich Hos- 
 pital, wrote a large volume, containing an account of the abuses of the 
 hospital, and treating the characters of many of the officers of the hos- 
 pital (who were 'public officers), and Lord Sandwich in particular, who 
 was First Lord of the Admiralty, with much asperity, and printed 
 several copies of it, which he distributed to the governors of the 
 hospital only, and not to any other person, the rule for an informa- 
 tion was discharged. Lord Mansfield said, that this distribution of 
 the copies to the persons only who were from their situations called 
 on to redress these grievances, and had, from their situations, com- 
 petent power to do it, was not a publication sufficient to make the 
 writing a libel, (d) Where, however, the defendant wrote a letter to 
 the Secretary of State, imputing to the town clerk and clerk to the 
 justices of a borough, corruption in the latter office, it was held that 
 this was not privileged, because the Secretary of State had no direct 
 authority in respect of the matter complained of, and was not a com- 
 petent tribunal to receive the application, (e) But a memorial pre- 
 sented to the Secretary of State for the Home Department by the 
 elector of a borough complaining of the conduct of a justice of the 
 peace during a recent election of a Member of Parliament for 
 the borough, and imputing that he had made speeches inciting to 
 a breach of the peace, and praying that the secretary would cause 
 an incpuiry to be made into the conduct of the plaintiff, and that, 
 on the allegations being substantiated, the secretary would recom- 
 mend to the Queen that the justice should be removed from the 
 commission of the peace, is a privileged communication ; for though 
 the Lord Chancellor generally is consulted as to the removal of jus- 
 tices of the peace, the memorial might be considered as addressed to 
 the Queen, through the secretary, who might have caused the inquiry 
 to be made, have communicated with the Lord Chancellor, and have, 
 
 (a) R. v. Bayley, Andr. 229, Bac. Abr. seemed to think that whether the paper 
 
 tit. Libel (A.) 2. As to the privilege of pro- were in manuscript or printed, under these 
 
 ceedings in courts of justice, see ante, p. 600. circumstances, made no difference. 
 
 {b) Fairman v. Ives, 5 B. & A. 642. (e) Blagg v. Sturt, 10 Q. B. 899. This 
 
 See per Maule, J., in Wenman v. Ash, 13 case was much considered in Harrison v. 
 
 C. B. 836. Bush, infra, and ma}', perhaps, be shaken 
 
 (c) Woodward v. Lander, 6 C. & P. 548. by it. The cases, however, are distinguish- 
 
 Alderson, B. Blake v. Pilford, 1 M. & Rob. able, as the clerk to justices of the peace 
 
 198, Taunton, J. is appointed by them, and a Secretary of 
 
 ('/) R. v. Baillie, 30 Geo. 3. Holt on State has no authority as to him, either 
 
 Libel, 173. 1 Ridgway's Collection of directly or indirectly. 
 Erskine's Speeches, p. 1. Lord Mansfield
 
 chap, xxviii.] Libel arid Indictable Slander. 611 
 
 in effect, recommended the removal of the justice. (/ ) And where the 
 publication is an admonition, or in the course of the discipline of a 
 religious sect, as the sentence of expulsion from a society of Quakers, 
 it is not libellous, (g) So a letter written by a son-in-law to his mother- 
 in-law, containing imputations on the character of a person whom she 
 was about to marry, and desiring a diligent and attentive inquiry into 
 his character, if written bond fide , is a privileged communication, (h) 
 And it has been decided, that an action will not lie for words inno- 
 cently read as a story out of a book, however false and defamatory 
 they may be. Thus, where a clergyman in a sermon recited a story 
 out of Fox's Martyrology, that one G., being a perjured person, and a 
 great persecutor, had great plagues inflicted upon him, and was killed 
 by the hand of God ; whereas in truth he never was so plagued, and 
 was himself actually present at the discourse, the words being deliv- 
 ered only as matter of history, and not with any intention to slander, 
 it was adjudged for the defendant, (i) 
 
 To a declaration in an action for libel, setting out letters written of 
 and concerning the plaintiff, the defendant pleaded, in substance, that 
 when he wrote the letters he was the superior military officer of the 
 plaintiff, and that it was his duty, as such superior officer, to forward 
 to the Adjutant-General letters written by the officers under his com- 
 mand, and sent to him in relation to their military conduct, &c, and 
 to make reports in writing to the Adjutant-General upon such letters 
 for the information of the Commander-in-Chief ; that he (defendant) 
 had received such letters from the plaintiff, and had forwarded them 
 in the ordinary course of his military duty as such superior military 
 officer to the Adjutant-General as an act of military duty and not 
 otherwise, and had made certain reports in writing, &c, which letters 
 and reports were the libels complained of. To this plea the plaintiff 
 replied that ' the said words in the declaration mentioned were written 
 and published by the defendant of actual malice on his [the defend- 
 ant's] part, and without reasonable, probable, or justifiable cause, and 
 not bond fide or in the bond fide discharge of the defendant's duty as 
 such superior officer, as in the said second plea alleged : ' Held, by 
 Mellor and Lush, JJ., that even though the words complained of 
 were published of actual malice, and without any reasonable, probable, 
 or justifiable cause, as alleged in the replication, yet that, inasmuch 
 as the question raised was one purely of military cognizance, the 
 plaintiff and the defendant being officers in the army, and both bound 
 by the Articles of War, the plaintiff had no remedy at law : Held, by 
 Cockburn, C. J., that the plaintiff was entitled to judgment, (j) 
 
 The Board of Admiralty having ordered the defendant, the Queen's 
 printer, to print a board minute relating to their proceedings in naval 
 ship-building, which contained a letter of the Comptroller of the Navy 
 in reference to plans of the plaintiff submitted to the board, the de- 
 
 (/) Harrison v. Bush. 5 E. & B. 344 ; (k) Todd v. Hawkins, 8 C. & P. 88, 
 
 Diekeson v. Hilliard, 43 L. J. Ex. 37. Alderson, B. 
 
 (g) R. v. Hart, 2 Burn's Eec. L. 779. (i) Bac. Ab. Libel (A.) 2. 
 
 The charge of a bishop to his clergy in (j) Dawkins v. Paulet, 32 L. J. Q. B. 
 
 convocation is a privileged communication. 53. See Dawkins v. Lord Rokeby, 42 L. 
 
 Laughton v. The Bishop of Sodor and Man, J. Q. B. 63. 
 42 L. J. P. C. 11.
 
 612 Privileged Communications. [book ii. 
 
 fendant sold copies to the public ; the plaintiff brought his action of 
 libel against the defendant, averring that a statement in such letter 
 that the plans derived no weight from his antecedents, meant that 
 his plans were worthless, and were calculated to injure him in his 
 profession ; no actual malice was imputed : Held, by the majority 
 (Willes, Byles, and Brett, JJ.) of the Court (dissentiente, Grove, J.), 
 that the plaintiff was rightly non-suited on the ground that every 
 man has a right to discuss freely, if honestly and without malice, any 
 subject in which the public are generally interested, and that what 
 the defendant had done merely amounted to this. (k) 
 
 Comments by a churchwarden upon the conduct of the clergymen, 
 in taking meals in the vestry, and in causing books to be sold in the 
 church during service, are matters of public interest, and may law- 
 fully be published if they do not exceed the boundaries of fair 
 criticism. (/) 
 
 The proper meaning of a privileged communication is this : that 
 the occasion on which the communication was made rebuts the infer- 
 ence, prima facie, arising from a statement prejudicial to the character 
 of the plaintiff, and puts it upon him to prove that there was malice 
 in fact ; that the defendant was actuated by motives of personal spite 
 or ill will, independent of the occasion on which the communication 
 was made. This may be made out either from the language of the 
 letter itself, or by extrinsic evidence, or by proof of the conduct or 
 expressions of the defendant, showing that he was actuated by a 
 motive of personal ill will, (m) But where the publication is prima 
 facie privileged, juries ought not to look too strictly at the particular 
 expressions used, but ought clearly to see that the letter was written 
 with a malicious intent before they find it to be a libel, (n) 
 
 It is matter of law for the judge to determine whether the occa- 
 sion of writing or speaking criminatory language repels the inference 
 of malice, constituting what is called a privileged communication ; 
 and if at the close of the case for the prosecution there is no intrinsic 
 or extrinsic evidence of malice, it is the duty of the judge to direct 
 a verdict for the defendant 5 but wherever there is evidence of malice, 
 either intrinsic or extrinsic, it is the duty of the judge to leave the 
 question of express malice to the jury. (0) But where a communica- 
 tion is prima facie privileged, in order to leave the question of malice 
 to the jury, it is not enough that the facts proved are consistent with 
 the presence of malice as well as with its absence ; for actual malice 
 must be proved, and therefore its absence must be presumed until 
 such proof is given, (p) Where a letter containing defamatory words 
 is written upon a privileged occasion, surrounding circumstances are 
 to be considered by the judge at the trial in determining whether the 
 
 (k) Henwood v. Harrison, 41 L. J. C. P. (0) Cooke v. Wildes, 5 E. & B. 328. 
 
 206. Gilpin v. Fowler, 9 Exc. R. 615. 
 
 (1) Kellv v. Tinling, 35 L. J. Q. B. 231. (p) Somerville v. Hawkins, 10 C. B. 588. 
 
 (m) Wright v. Woodgate, 2 C. M. & R. Taylor v. Hawkins, 16 Q. B. 308. Harris 
 
 573. 1 T. & Gr. 12. See Blake v. Pilfold, v. Thompson, 13 C. B. 333. Wenman v. 
 
 1 M. & Rob. 198, Taunton, J. Blagg v. Ash, 13 C. B. 836 ; Wason v. Walter, 38 
 
 Sturt, 10 Q. B. 899. L. J. Q. B. 41, per Cockbum, C. J.; Hartu. 
 
 (n) Woodward v. Lander, 6 C. & P. 548, Von Gumpack, 43 L. J. P. C. 25. 
 Alderson, B. Todd v. Hawkins, 8 C. & P.
 
 CHAP, xxvm.] Libel and Indictable Slander. 613 
 
 words used are so much too violent for the occasion as to rebut the 
 presumption of the absence of malice arising from the privilege of 
 the occasion ; and if from surrounding circumstances it appears that 
 the words are capable of two constructions, one of which is compatible 
 with the absence of malice, then the presumption of the absence of 
 malice which existed in the first instance from the privilege of the 
 occasion should be allowed to prevail throughout, (q) 
 
 Sec. III. 
 Publications against the Christian Religion} 
 
 Of publications against the Christian religion. — 1. It has been 
 before observed, (r) that blaspheming God, or turning the doctrines 
 of the Christian religion into contempt and ridicule, is an indict- 
 able offence. At common law, all blasphemies against God, as 
 denying His being or providence ; and all contumelious reproaches of 
 Jesus Christ ; all profane scoffing at the Holy Scripture, or exposing 
 any part thereof to contempt or ridicule ; and also seditious words in 
 derogation of the established religion, — are considered as offences tend- 
 ing to subvert all religion and morality, and punishable by the tem- 
 poral courts with fine and imprisonment, and also infamous corporal 
 punishment in the discretion of the Court, (s) 
 
 Some provisions have also been made upon this subject by statutes 
 The 1 Edw. 6, c. 1, (t) enacts, that persons reviling the Sacrament of 
 the Lord's Supper by contemptuous words or otherwise, shall suffer 
 imprisonment. The 1 Eliz. c. 2, (it) enacts, that if any minister shall 
 speak anything in derogation of the Book of Common Prayer, he shall, 
 if not beneficed, be imprisoned one year for the first offence, and for 
 life for the second ; and if he be beneficed, shall for the first offence 
 be imprisoned six months and forfeit a year's value of his benefice ; 
 for the second, shall be deprived and suffer one year's imprisonment ; 
 and for the third, shall in like manner be deprived and suffer impris- 
 onment for life. And that if any person whatsoever shall in plays, 
 songs, or other open words, speak anything in derogation, depraving, 
 or despising of the said book, or shall forcibly prevent the reading of 
 it, or cause any other service to be read in its stead, he shall forfeit 
 for the first offence 100 marks ; for the second, 400 ; and for the third, 
 shall forfeit all his goods and chattels, and suffer imprisonment for 
 life. The 1 Will. 3, c. 18, s. 17, enacted, that whosoever should deny 
 in his preaching or writing the doctrine of the Blessed Trinity, should 
 
 (q) Spill v. Maule, 38 L. J. Ex. 138. (/) Repealed by 1 Mary c. 2, and revived 
 
 (?•) Ante, p. 595. by 1 Eliz. c. 1. 
 
 (s) See ante, p. 595, and the cases col- (u) Partly repealed by the 7 & 8 Vict, 
 
 lected in 1 Hawk. P. C. c. 5. Gathercole's c. 102, and 9 & 10 Vict. c. 59, but not so as 
 
 case, 2 Lewin, 287. to affect the provisions here mentioned. 
 
 American Note. 
 1 See Bishop ii. s. 74. Various statutes fane swearing to such an extent as to become 
 have been passed in many States of America a public nuisance is also indictable in 
 declaratory of the law, see s. 80, and pro- America.
 
 614 Publications against the Christian Religion. [book ii. 
 
 lose all benefit of the Act for granting toleration. This section is now 
 repealed by 5.3 Geo. 3, c. 160 : but while it was in existence it was con- 
 sidered as operating to deprive the offender of the benefit therein 
 mentioned, leaving the punishment of the offence as for a misde- 
 meanor at common law. (v) The 9 & 10 Will. 3, c. 32, enacted, that, 
 if any person, educated in or having made profession of the Christian 
 religion, should, by writing, printing, teaching, or advised speaking, 
 deny any one of the Persons in the Holy Trinity to be God, (w) or 
 should assert or maintain there are more gods than one, or should deny 
 the Christian religion to be true, or the Holy Scriptures to be of divine 
 authority, he should upon the first offence be rendered incapable to 
 hold any office or place of trust ; and for the second be rendered inca- 
 pable of bringing any action, being guardian, executor, legatee, or 
 purchaser of lands, and should suffer three years' imprisonment with- 
 out bail, (x) A person offending under this statute was held to be also 
 indictable at common law. (y) And where a motion was made in 
 arrest of judgment on an information for a blasphemous libel, on the 
 ground that this statute had put an end to the common law offence : 
 the Court were clear that it had not, considering that the provisions 
 of the statute were cumulative, (z) 
 
 Upon the trial of an information against the defendant for uttering 
 expressions grossly blasphemous, Hale, C. J., observed, that such kind 
 of wicked blasphemous words were not only an offence to God and 
 religion, but a crime against the laws, state, and government, and 
 therefore punishable in the Court of King's Bench. That to say reli- 
 gion is a cheat is to dissolve all those obligations whereby civil society 
 is preserved ; that Christianity is part of the laws of England, and 
 therefore to reproach the Christian religion is to speak in subversion 
 of the law. (a) In a case where a libel stated that Jesus Christ was 
 an impostor, a murderer in principle, and a fanatic, a juryman asked 
 whether a work denying the divinity of our Saviour was a libel , and 
 Abbott, C. J., answered that a work speaking of Jesus Christ in the 
 language here used was a libel ; and on a motion for a new trial, on 
 the ground that this was a wrong answer, the Court without difficulty 
 held that the answer was right. (5) 
 
 Where the defendant had been convicted for publishing several 
 blasphemous libels, in which the miracles of our Saviour were turned 
 into ridicule and contempt, and His life and conversation calumniated, 
 it was moved in arrest of judgment that this was not an offence within 
 the cognizance of the temporal courts at common law ; but the Court 
 would not suffer the point to be argued, saying that the Christian 
 religion, as established in this kingdom, is part of the law; and, there- 
 fore that whatever derided Christianity derided the law, and conse- 
 quently must be an offence against the law. (c) It was also moved in 
 
 (v) Bv Lord Kenyon in R. v. Williams, discharged for that once from all disabilities. 
 1797. C Holt on Libel, 66. (y) Barnard, 162. 2 Str. 834. Fitzgib. 
 
 (w) Repealed by the 53 Geo. 3, c. 160, 64. R. v. Williams, 1797. R. v. Caton, 
 
 s. 2, ' so far as the same relates to persons 1812. 
 
 denying as therein mentioned respecting the (z) R. v. Carlisle, 3 B. & A. 161. 
 
 Holy Trinity.' (a) R. v. Taylor, Vent. 293. 3 Keb. 607. 
 
 (x) But the delinquent publicly renounc- (b) R. v. Waddington, 1 B. & C. 26. 
 
 ing his error in open court, within four (c) R. v. Woolston, Barnard, 162. 2 Str. 
 
 months after the first conviction, is to be 834. Fitzgib. 64.
 
 chap, xxviii.] Libel and Indictable Slander. 615 
 
 arrest of judgment, that as the intent of the book was only to show 
 that the miracles of Jesus Christ were not to be taken in their literal 
 sense, it could not be considered as attacking Christianity in general, 
 but only as striking against one received proof of His being the Mes- 
 siah ; to which the Court said, that the attacking Christianity in the 
 way in which it was attacked in this publication was destroying the 
 very foundation of it, and that, though there were professions in 
 the book that its design was to establish Christianity upon a true bot- 
 tom by considering these narrations in Scripture as emblematical and 
 prophetical, yet that such professions were not to be credited, and that 
 the rule is allegatio contra factum non est admittenda. But the Court 
 also said, that though to write against Christianity in general is clearly 
 an offence at common law, they laid stress upon the word general, and 
 did not intend to include disputes between learned men upon particu- 
 lar controverted points ; and, in delivering the judgment of the Court, 
 Raymond, C. J., said, ' I would have it taken notice of that we do not 
 meddle with any differences of opinion, and that we interpose only 
 where the very root of Christianity itself is struck at. ' (d) 
 
 The doctrine of the Christian religion constituting part of the law 
 of the land was recognized in a later case, where the judgment of the 
 Court of King's Bench was pronounced upon a person convicted of 
 having published a blasphemous libel, called Paine' s Age of Reason, (e) 
 Ashhurst, J., said, that, although the Almighty did not require the 
 aid of human tribunals to vindicate His precepts, it was, nevertheless, 
 fit to show our abhorrence of such wicked doctrines as were not only 
 an offence against God, but against all law and government, from their 
 direct tendency to dissolve all the bonds and obligations of civil soci- 
 ety ; and that it was upon this ground that the Christian religion con- 
 stituted part of the law of the land. That if the name of our Redeemer 
 was suffered to be traduced, and His holy religion treated with con- 
 tempt, the solemnity of an oath, on which the due administration of 
 justice depended, would be destroyed, and the law be stripped of one 
 of its principal sanctions, the dread of future punishments. (/) 
 
 Contumely and contempt are what no establishment can tolerate : 
 but, on the other hand, it would not be proper to lay any restraint 
 upon rational and dispassionate discussions of the rectitude and pro- 
 priety of the established mode of worship, (g) A sensible writer upon 
 the subject of libel says, as to this point — ' that it may not be going 
 too far to infer, from the principles and decisions, that no author or 
 preacher who fairly and conscientiously promulgates the opinions with 
 whose truth he is impressed, for the benefit of others, is, for so doing, 
 amenable as a criminal ; but a malicious and mischievous intention is 
 in such case the broad boundary between right and wrong ; and that if 
 it can be collected, from the offensive levity with which so serious a 
 subject is treated, or from other circumstances, that the act of the 
 party was malicious, then, since the law has no means of distinguish- 
 
 (d) R. v. Woolston, Fitzgib. 66. conduct of mankind. In other respects also 
 (c) This libel was of the worst kind, it ridiculed and vilified the prophets, our 
 attacking the truth of the Old and New Saviour, His disciples, and the Sacred Scrip- 
 Testaments ; arguing that there was no tures. 
 
 genuine revelation of" the will of God existing ( / ) R. v. Williams, 1797. Holt on Libel, 
 
 in the world ; and that reason was the only 69, note (e). 2 Starkie on Libel, 141. 
 
 true faith which laid any obligations on the (g) 4 Blac. Com. 51.
 
 616 Publications against the Christian Religion, [book ii. 
 
 ing between different degrees of evil tendency, if the matter published 
 contain any such tendency, the publisher becomes amenable to jus- 
 tice.' (K) It is a question for the jury whether or not the words 
 amount to a blasphemous libel. The wilful intention to insult and 
 mislead others by means of licentious and contumelious abuse offered 
 to sacred subjects or by wilful misrepresentations or wilful sophistry 
 calculated to mislead the ignorant and unwary, is the criterion and test 
 of guilt. A malicious and mischievous intention, or what is equivalent 
 to such an intention in law as well as morals — a state of apathy and 
 indifference to the interests of society — is the broad boundary between 
 right and wrong, (i) ' To asperse the truth of Christianity cannot per 
 se be sufficient to sustain a criminal prosecution for blasphemy. To 
 maintain that merely because the truth of Christianity is denied without 
 more, therefore the person denying it may be indicted for blasphemous 
 libel is, I venture to think, absolutely untrue. It is a view of the 
 law which cannot be historically justified. Parliament, the supreme 
 authority as to old law, has passed Acts which render the dicta of the 
 judges in former times no longer applicable. And it is no disparage- 
 ment to their authority to say that observations which were made 
 under one state of the law are no longer applicable under a different 
 state of things. As I observed before ; I put it as a reductio ad absurdtim 
 that if it was enough to say that " Christianity was part of the law of 
 the land," then there could be no discussion on any part of the law of 
 the land, and it would be impossible, for example, to discuss in a grave 
 argumentative way the question of a monarchical form of government, 
 as Harrington discussed it in his " Oceana," without being liable to be 
 indicted for a seditious libel. I was not aware that what I then put 
 as a reductio ad absurdu?7i had been judicially held, and that a man 
 had actually been convicted of a seditious libel (R v. Sedford, Gil- 
 bert's Rep. 297) for discussing such a question, his work containing, 
 as the report states, no reflection upon the existing government. No 
 judge or jury in our day would convict a man of seditious libel in such 
 a case, — it would be regarded as monstrous. I have no doubt there- 
 fore that the mere denial of the truth of Christianity is not enough to 
 constitute the offence of blasphemy. . . . Whatever the older cases may 
 have been, the fact remains that Parliament has altered the law as to 
 religion. It is no longer the law that none but believers in Chris- 
 tianity can hold office in the State. The state of things is no longer 
 the same as when the older judgments were pronounced, — judgments, 
 however, which have been strained, I think, beyond what they will 
 justly warrant. . . . The defendants have admitted that these publica- 
 tions were intended to be attacks on Christianity and on the Hebrew 
 Scriptures, and have cited a number of passages from approved writers 
 which they say are to the same effect. That may be so . . . and I 
 lay it down as law that if the decencies of controversy are observed, 
 even the fundamentals of religion may be attacked without the writer 
 being guilty of blasphemy. But no one can fail to see the difference 
 between the works of the writers who have been quoted and the lan- 
 guage used in the publications now before us, and I am obliged to say 
 that it is different not only in degree but in kind and nature. There 
 
 (h) Starkie on Libel, 1st edit. 496, 497. (/) Per Lord Coleridge, C. J., R. v. Brad- 
 
 See 2nd edit., vol. 2, 146-7. laugh, 15 Cox, C. C. 217.
 
 CHAP, xxviii.] Libel and Indictable Slander. G17 
 
 is a grave and earnest tune, a reverent, perhaps I might even say a 
 religious, spirit about the very attacks on Christianity itself which we 
 find in the authors referred to which shows that what they aimed at 
 was not insult to the opinions of the majority of mankind nor to 
 Christianity itself, but real, quiet, earnest pursuit of truth. And if 
 the truth at which they have arrived is not that which you and I 
 have been taught and at which perhaps we might now arrive, it is not 
 because their conclusions differ from ours that they are to be deemed 
 fit subjects for criminal prosecution.' (j) 
 
 Where a defendant was charged with publishing a libel upon a 
 religious order, consisting of females, professing the Roman Catholic 
 faith, called the Scorton Nunnery, Alderson, B., observed, a person 
 may, without being liable to prosecution for it, attack Judaism or 
 Mahoinedanism, or even any sect of the Christian religion, save the 
 established religion of the country ; and the only reason why the 
 latter is in a different situation from the other is, because it is the 
 form established by law, and is therefore a part of the constitution of 
 the country. For the same reason any general attack on Christianity 
 is the subject of a criminal prosecution, because Christianity is the 
 established religion of the country. Any person has a right to enter- 
 tain his opinions, to express them, to discuss the subject of the Roman 
 Catholic religion, and its institutions ; but he has no right in so doing 
 to attack the characters of individuals, (k) 
 
 As to the extent of this offence and the nature and certainty of the 
 words, it appears to be immaterial whether the publication is oral 
 or written ; though the committing mischievous matter to print 
 or writing, and thereby affording it a wider circulation, would undoubt- 
 edly be considered as an aggravation, and affect the measure of 
 punishment. (I) 
 
 Sec. IV. 
 
 Publications against Morality. 
 
 When the Star Chamber had been abolished, it appears that the 
 Court of King's Bench came to be considered as the custos morum, 
 having cognizance of all offences against the public morals ; (w) under 
 which head may be comprehended representations whether by writing, 
 picture, sign, or substitute, tending to vitiate and corrupt the minds 
 and morals of the people, (n) Formerly, indeed, it appears to have 
 been holden that publications of this kind were not punishable in the 
 temporal Courts ; (o) but a different doctrine has since been estab- 
 lished, (p) And in late times indictments for obscene writings and 
 prints have frequently been preferred, without any objection having 
 been made to the jurisdiction of the temporal Courts. 
 
 {j) Per Lord Coleridge, C. J., in charging (n) Holt on Libel, 73. 
 
 the jury, R. v. Ramsay, 15 Cox, C. C. 231. (o) R. v. Read, 11 Mod. 142. 1 Hawk. 
 
 (k) Gathercole's case, 2 Lewin, 237. P. C. c. 73, s. 9. 
 
 (I) 2 Starkie on Libel, 144, 2nd edit. (p) R. v. Curl, 2 Str. 788. R. v. Wilks, 
 
 (to) Sir Ch. Sedlev's case, 1663. Keb. 4 Burr. 2527. 
 720. 2 Str. 790. Sid. 168.
 
 618 Publications against Morality. [book ii. 
 
 The principle of the cases upon this subject seems to comprehend 
 oral communications, when made before a large assembly, and when 
 there is a clear tendency to produce immorality, as in the case of the 
 performance of an obscene play, (q) 
 
 Sec. V. 
 
 Libels against the Constitution. 
 
 Libels against the constitution, abstracted from all personal allu- 
 sions, do not appear, either in ancient or modern times, to have been 
 often made the subject of legal inquiry. In general, publications 
 upon the constitution, avoiding all discussions of personal rights and 
 privileges, are speculative in their nature, and not calculated to gen- 
 erate popular heat. But if they should be of a different description, 
 tending to degrade and vilify the constitution, to promote insurrection, 
 and circulate discontent through its members, they would, without 
 doubt, be considered as seditious and criminal, (r) An intention to 
 excite ill will between different classes of her Majesty's subjects 
 may be a seditious intention under all the circumstances of the case 
 which are for the jury. Sedition embraces everything whether by 
 word, deed, or writing which is calculated to disturb the tranquillity 
 of the state and lead ignorant persons to endeavour to subvert its 
 laws, (s) 
 
 Thus it appears to have been adjudged, that though no indictment 
 lay for saying that the laws of the realm were not the laws of God, 
 because true it is that they are not the laws of God ; yet that it 
 would be otherwise to say that the laws of the realm are contrary to 
 the laws of God. (t) And a defendant was convicted on an informa- 
 tion charging him with having published, concerning the government 
 of England and the traitors who adjudged King Charles the First to 
 death, that the government of the kingdom consists of three estates, 
 and that if a rebellion should happen in the kingdom, unless that 
 rebellion was against the three estates, it was no rebellion, (u) In 
 another case a person was convicted for publishing a libel, in which 
 it was suggested that the revolution was an unjust and unconstitu- 
 tional proceeding, and the limitation established by the Act of Set- 
 tlement was represented as illegal, and that the revolution and 
 settlement of the crown as by law established had been attended with 
 fatal and pernicious consequences to the subjects of the kingdom, (v) 
 
 (q) 2 Starkie on Libel, 159. In R. v. (u) R. v. Harrison, 1677. 3 Keb. 841. 
 
 Curl, 2 Str. 790, it was stated that there Vent. 324. And a treatise upon hereditary 
 
 had been many prosecutions against the right was holden to be a libel, though it 
 
 players for obscene plays, but that they had contained no reflection upon any part of the 
 
 interest enough to get the proceedings stayed then government, R. v. Bedford, 1711. 2 
 
 before judgment. Str. 789. Gilb. 297. 
 
 (r) Holt on Libel, 86. (v) R. v. Nutt, 1754. Dig. L. L. 126, 
 
 (s) Per Cave J., R. v. Burns, 16 Cox, C. and see Dr. Shebbenre's case, and R. v. 
 
 C. 355. Paine, Holt on Libel, 88, 89, and 2 Starkie 
 
 (t) 2 Roll. Abr. 78. on Libel, 164.
 
 chap, xxviii.] Libel and Indictable Slander. 619 
 
 Sec. VI. 
 Libels against the King. 
 
 Though a different construction may have prevailed in more arbi- 
 trary times, it is now settled that bare words, not relative to any act 
 or design, however wicked, indecent, or reprehensible they may be, 
 are not in themselves overt acts of high treason ; but only a misprision, 
 punishable at common law by a fine and imprisonment, nor other cor- 
 poral punishment ; (w) though words may expound an overt act, and 
 show with what intent it was done, (x) And, generally speaking, any 
 words, acts, or writing tending to vilify or disgrace the King, or to 
 lessen him in the esteem of his subjects, or any denial of his right to 
 the crown, even in common and unadvised discourse, amount at com- 
 mon law to a misprision punishable by fine and imprisonment, (y) 
 
 There are also some legislative provisions upon this subject. The 
 3 Edw. 1, c. 34, enacts, that none be so hardy to tell or publish any 
 false news or tales, whereby discord or occasion of discord or slander 
 may grow between the King and his people, and the great men of the 
 realm, (z) 1 And with a view to the security of the succession of the 
 House of Hanover, according to the Act of Settlement, a law was 
 passed declaring it to be treason to write or print against it. (a) 
 
 The nature of the offence of libel against the monarch personally 
 has been ably explained and illustrated, according to the more mild 
 and liberal doctrines of the present time, in the following case : — 
 
 The defendant was charged with having published a libel to the 
 following effect: ' What a crowd of blessings rush upon one's mind, 
 that might be bestowed upon the country in the event of a total 
 change of system ! Of all monarchs, indeed, since the Revolution, the 
 successor of George the Third will have the finest opportunity of be- 
 coming nobly popular.' Lord Ellenborough, C. J., in addressing the 
 jury, stated, that the first sentence of this passage would easily admit 
 of an innocent interpretation ; that the fair meaning of the expression 
 ' change of system' was a change of political system, — not a change 
 in the frame of the established government, but in the measures of 
 policy which had been for some time pursued; and that by total change 
 of system was certainly not meant subversion or demolition, the descent 
 of the crown to the successor of his Majesty being mentioned imme- 
 diately after. His Lordship then proceeded : ' If a person who admits 
 the wisdom and virtues of his Majesty, laments that in the exercise 
 
 (w) 1 East, P. C. c. 2, s. 55, p. 117. the fabrication of news likely to produce any 
 
 (x) Crohagan's case, Cro. Car. 332. public detriment would be considered as 
 (y) 4 Blac. Com. 123. criminal. Starkie on Libel, 546, 1st edit. 
 (z) It is said to have been resolved by (a) 6 Anne, c. 7 ; and see other statutes 
 all the judges that all writers of false news which were passed for the purpose of guard- 
 are indictable and punishable (4 Read. St. ing the King's character and title, cited in 2 
 L. Dig. L. L. 23) ; and probably at this day Starkie on Libel, 171, 2nd edit. 
 
 American Note. 
 
 1 It seems doubtful whether this would be held to be an offence in America. Bishop 
 i. s. 477.
 
 620 Libels against the King. [book ii. 
 
 of these he has taken an unfortunate and erroneous view of the inter- 
 ests of his dominions, I am not prepared to say that this tends to de- 
 grade his Majesty, or to alienate the affections of his subjects. I am 
 not prepared to say that this is libellous. But it must be with per- 
 fect decency and respect, and without any imputation of bad motives. 
 Go one step further, and say or insinuate that his Majesty acts from 
 any partial or corrupt view or with an intention to favour or oppress 
 any individual or class of men, and it would become most libellous.' 
 Upon the second sentence, after stating that it was more equivocal, 
 and telling the jury that they must determine what was the fair im- 
 port of the words employed, not in the more lenient or severe sense, 
 but in the sense fairly belonging to them, and which they were intended 
 to convey, Lord Ellenborough proceeded : ' Now do these words mean, 
 that his Majesty is actuated by improper motives, or that his successor 
 may render himself nobly popular by taking a more lively interest in 
 the welfare of his subjects ? Such sentiments, as it would be most 
 mischievous, so it would be most criminal to propagate. But if the 
 passage only means that his Majesty, during his reign, or any length 
 of time, may have taken an imperfect view of the interests of the 
 country, either respecting our foreign relations, or the system of our 
 internal policy ; if it imputes nothing but honest error, without moral 
 blame, I am not prepared to say that it is a libel.' And again, towards 
 the conclusion of his address, his Lordship said : ' The question of in- 
 tention is for your consideration. You will not distort the words, but 
 give them their application and meaning as they impress your 
 minds. What appears to me most material is the substantive para- 
 graph itself ; (b) and if you consider it as meant to represent that the 
 reign of his Majesty is the only thing interposed between the subjects 
 of this country and the possession of great blessings which are likely 
 to be enjoyed in the reign of his successor, and thus to render his 
 Majesty's administration of his government odious, it is a calumnious 
 paragraph, and to be dealt with as a libel. If on the contrary you do 
 not see that it means distinctly, according to your reasoning, to impute 
 any purposed maladministration to his Majesty, or those acting under 
 him, but may be fairly construed as an expression of regret that an 
 erroneous view has been taken of public affairs, I am not prepared to 
 say that it is a libel. There have been errors in the administration of 
 the most enlightened men.' (c) 
 
 Falsely publishing that the King is labouring under mental derange- 
 ment is a libel : it tends to unsettle and agitate the public mind, and 
 to lower the respect due to the King, (d) 
 
 (b) The libel was published in a news- matter, and printed in a different character. 
 paper; and it had been allowed to the (c) R. v. Lambert, 2 Campb. 398. 
 defendant to have read in evidence an extract (d) R. v. Harvey, 2 B. & C. 257, and 
 from the same paper connected with the malice will be implied from such wilful de- 
 subject of the passage charged as libellous, faming without excuse. See the case, post. 
 although disjoined from it by extraneous p. 643.
 
 chap, xxviii.] Libel and Indictable Slander. 621 
 
 Sec. VII. 
 
 Libels against Houses of Parliament. 
 
 The two Houses of Parliament are an essential part of the constitu- 
 tion, and entitled to reverence and respect, on account of the import- 
 ant public duties which they have to discharge. But as they have 
 the power of treating libels against them as breaches of their y>riv- 
 ileges, and vindicating them in the nature of contempts, more cases of 
 such libels are to be met with in their journals than in the proceed- 
 ings of the courts of law. The common law, however, is fully capable 
 of taking cognizance of any publications reflecting in a libellous man- 
 ner upon the members or proceedings of the Houses of Parliament ; (e) 
 and it seems rather to have been the inclination of Parliament in 
 modern times to direct prosecutions for such offences in the courts of 
 common law, and to waive the exercise of their own extensive privi- 
 leges. In the case of B. v. Stockdale,(f) the attorney-general in his 
 speech to the jury, after stating the address of the House of Commons 
 to the King, praying that his Majesty would direct the information 
 to be filed, proceeded thus : ' I state it as a measure which they have 
 taken, thinking it in their wisdom, as every one must think it, to be 
 the fittest to bring before a jury of their country an offender against 
 themselves, avoiding thereby, what sometimes indeed is unavoidable, 
 but which they wish to avoid whenever it can be done with propriety, 
 the acting both as judges and accusers, which they must necessarily 
 have done, had they resorted to their own powers, which are great 
 and extensive, for the purposes of vindicating themselves against in- 
 sult and contempt, but which in the present instance they have wisely 
 forborne to exercise, thinking it better to leave the offender to be dealt 
 with by a fair and impartial jury.' (g) 
 
 Sec. VIII. 
 
 Libels upon the Government. 1 
 
 Of publications against the government. — The extent to which the 
 measures of the King, or the proceedings of his government, may be 
 
 (e) As in R. v. Rayner, 2 Barnard, 293, pamphlet, which was called ' Thoughts on 
 where the defendant was convicted of print- the English Government,' there was this 
 ing a scandalous libel on the Lords and passage amongst others which the House 
 Commons; and in R. v. Owen, 25 Geo. 2. deemed libellous — 'That the King's gov- 
 MS. Dig. L. L. 67. In R. v. Stockdale, 28 eminent might go on if the Lords and 
 Geo. 3, an information was filed by the Commons were lopped off.' The jury con- 
 attorney-general for a libel upon the House sidered the expressions as merely metaphor- 
 of Commons. A prosecution was also insti- ical, and acquitted the defendant, 
 tuted in R. v. Reeves, 36 Geo. 3, in con- (/) Ante, note (c). 
 
 sequence of a resolution of the House of (g) See 2 Ridgway's speeches of the Hon. 
 
 Commons, declaring a pamphlet, published T. Erskine, p. 208. 
 by the defendant, to be a libel. In the 
 
 American Note. 
 
 1 It is stated that the prosecution of libels United States Courts have no common law 
 on government are nearly or quite unknown jurisdiction as to these libels, 
 in America. Bishop ii. s. 942 (2). The
 
 G22 Libels upon the Government. [book ii. 
 
 fairly and legally canvassed, has been the subject of much discussion, 
 as it is undoubtedly one of the first importance : but it is not within 
 the scope and design of this Treatise to enter further upon the question, 
 than by stating a few of the established principles and decided cases. 
 
 It may be observed, that the liberty of discussion, which in many 
 instances has been admitted on the part of the officers of the crown, 
 would seem to be sufficient to answer all the purposes of the honest 
 patriot; the man who would condemn only with a view to genuine 
 and constitutional reformation. Upon a prosecution for a libel, the 
 Attorney-General in his opening to the jury thus expressed himself : 
 ' The right of every man to represent what he may conceive to be an 
 abuse or grievance in the government of the country, if his intention 
 in so doing be honest, and the statement made upon fair and open 
 grounds, can never for a moment be questioned. I shall never think 
 it my duty to prosecute any person for writing, printing, and pub- 
 lishing, fair and candid opinions on the system of the government 
 and constitution of this country, nor for pointing out what he may 
 honestly conceive to be grievances, nor for proposing legal means of 
 redress.' (h) Every man has a right to give every public matter a can- 
 did, full, and free discussion ; but although the people have a right to 
 discuss any grievances they have to complain of, they must not do it 
 in a way to excite tumult ; and if a party publish a paper on any 
 such matter, and it contain no more than a calm and quiet discussion, 
 allowing something for a little feeling in men's minds, that will be no 
 libel ; but if the paper go beyond that limit, and be calculated to 
 excite tumult, it is a libel. (i~) 
 
 In many cases which may occur, the due exercise of this liberty and 
 right of discussion will involve considerations of much difficulty, and 
 require great nicety of discrimination ; as it may become necessary to 
 ascertain the particular points at which the bounds of rational discus- 
 sion have been exceeded. The answer to the following question has, 
 however, been proposed as a test, by which the intrinsic illegality of 
 such publications may be decided : (j) ' Has the communication a plain 
 tendency to produce public mischief by perverting the mind of the 
 subject, and creating a general dissatisfaction towards government ? ' 
 
 However innocent and allowable it may be to canvass political 
 measures within these limits, it is quite clear that their discussion 
 must not be made a cloak for an attack upon private character. 
 Libels on persons employed in a public capacity receive an aggrava- 
 tion as they tend to scandalize the government by reflecting on those 
 who are entrusted with the administration of public affairs ; for they 
 not only endanger the public peace, as all other libels do, by stirring 
 up the parties immediately concerned to acts of revenge, but also have 
 a direct tendency to breed in the people a dislike of their governors, 
 and incline them to faction and sedition. (/,-) If a paper has a direct 
 tendency to cause unlawful meetings and disturbances, and to lead to 
 a violation of the laws, it is a seditious libel. (7) 
 
 (/<) R. v. Perry, 1793. See 2 Ridgway's (I) 1 Hawk. P. C. c. 73, s. 7. Bae. Abr. 
 
 speeches, 371. tit. Libel (A.) 2. R. v. Franklin, 9 St. Tri. 
 
 (?) R. v. Collins, 9 C. & P. 456. Little- 255. 
 dale, J. (/) R v. Lovett, 9 C. & P. 462. Little- 
 
 0') Starkie on Libel, 525, 1st edit. dale. J.
 
 chap, xxviii.] Libel and Indictable Slander. 623 
 
 A person delivered a ticket up to the minister after sermon, wherein 
 he desired him to take notice that offences passed now without control 
 from the civil magistrate, and to quicken the civil magistrate to do his 
 duty, &c. ; and this was held to be a libel, though no magistrate in 
 particular was mentioned, and though it was not averred that the 
 magistrates suffered those vices knowingly, (m) 
 
 In a case where the defendant was prosecuted upon an information 
 for a libel upon the government, his counsel contended that the publi- 
 cation was innocent, and could not be considered as libellous, because 
 it did not reflect upon particular persons. But Holt, C. J., said : ' They 
 say nothing is a libel but what reflects on some particular person. But 
 this is a very strange doctrine to say that it is not a libel reflecting on 
 the government, endeavouring to possess the people that the govern- 
 ment is maladministered by corrupt persons that are employed in such 
 stations, either in the navy or army. To say that corrupt officers are 
 appointed to administer affairs is certainly a reflection on the govern- 
 ment. If men should not be called to account for possessing the people 
 with an ill opinion of the government, no government can subsist ; 
 nothing can be worse to any government than to endeavour to pro- 
 cure animosities as to the management of it ; this has always been 
 looked upon as a crime, and no government can be safe unless it be 
 punished.' (n) 
 
 This doctrine was recognized in a case, where the defendant was 
 charged with publishing a libel upon the administration of the Irish 
 government, and upon the public conduct and character of the Lord 
 Lieutenant and Lord Chancellor of Ireland. Lord Ellenborough, C. J., 
 in his address to the jury, observed, 'It is no new doctrine that if a 
 publication be calculated to alienate the affections of the people, by 
 bringing the government into disesteem, whether the expedient be by 
 ridicule or obloquy, the person so conducting himself is exposed to the 
 inflictions of the law. It is a crime ; it has ever been considered as a 
 crime, whether wrapt in one form or another. The case of R. v. Ticchin, 
 decided in the time of Lord Chief Justice Holt, has removed all ambi- 
 guity from this question ; and, although at the period when that case 
 was decided great political contentions existed, the matter was not 
 again brought before the judges of the Court by any application for a 
 new trial.' And afterwards his lordship said : ' It has been observed, 
 that it is the right of the British subject to exhibit the folly or imbe- 
 cility of the members of the government. But, gentlemen, we must 
 confine ourselves within limits. If in so doing individual feelings are 
 violated, there the line of interdiction begins, and the offence becomes 
 the subject of penal visitation.' (o) Notwithstanding any statute 
 rule or provision to the contrary, a person convicted of a seditious libel 
 is to be treated as a first-class misdemeanant, (j?) 
 
 (m) Bac. Abr. tit. Libel (A.) 2. 114, 115. 2 Starkie on Libel, 193, where 
 
 (?*,) R. v. Tuchin, 1704. Holt's R. 424. see in the note other cases referred to. 
 5 St. Tri. 532. (p) 40 & 41 Vict. c. 21, s. 40. 
 
 (o) R. v. Cobbett, 1804. Holt on Libel,
 
 624 Libels on Magistrates, Etc. [book ii. 
 
 Sec. IX. 
 Libels on Magistrates and Administration of Justice. 
 
 As nothing tends more to the disturbance of the public weal than 
 aspersions upon the administration of justice, contempts against the 
 King's judges, and scandalous reflections upon their proceedings, have 
 always been considered as highly criminal offences ; and one of the 
 earliest cases of libel appears to have been an indictment for an 
 offence of this kind, (q) 
 
 Generally, any contemptuous or contumacious words spoken to the 
 judges of any courts in the execution of their offices are indictable ; 
 and when reflecting words are spoken of the judges of the superior 
 courts at Westminster, the speaker is indictable both at common law 
 and under the statutes of scandalum magnatum, whether the words 
 relate to their office or not. (r) 
 
 Any publications reflecting upon and calumniating the administra- 
 tion of justice are of a libellous nature (s). So an order made by a 
 corporation, and entered in their books, stating that A. (against whom 
 a jury had found a verdict with large damages in an action for a ma- 
 licious prosecution, and which verdict had been confirmed in the Court 
 of Common Pleas), was actuated by motives of public justice in pre- 
 ferring the indictment, was held to be a libel reflecting on the admin- 
 istration of justice, for which an information should be granted against 
 the members who had made the order. Ashhurst, J., said, that the 
 assertion that A. was actuated by motives of public justice carried 
 with it an imputation on the public justice of the country ; for if 
 those were his only motives, then the verdict must be wrong. Bul- 
 ler, J., said : ' Nothing can be of greater importance to the welfare of 
 the public than to put a stop to the animadversions and censures 
 which are so frequently made on courts of justice in this country. 
 They can be of no service, and may be attended with the most mis- 
 chievous consequences. Cases may happen in which the judge and 
 jury may be mistaken : when they are, the law has afforded a remedy ; 
 and the party injured is entitled to pursue every method which the 
 law allows to correct the mistake. But when a person has recourse 
 either by a writing like the present, by publications in print, or by 
 any other means, to calumniate the proceedings of a court of justice, 
 the obvious tendency of it is to weaken the administration of justice, 
 and in consequence to sap the very foundation of the constitution 
 itself.' (0 
 
 In another case the same doctrine was acted upon : but it was at 
 the same time clearly admitted that it would be lawful to discuss the 
 
 (q) Holt on Libel, 153. nobles. But the civil proceeding is now 
 
 (/•) 2 Starkie on Libel, 195, where see the almost obsolete, the nobility preferring to 
 
 cases collected. And see 1 Hawk. P. C. c. 7, waive their privileges in any action of 
 
 et seq. The proceeding bv writ of scandalum slander, and to stand upon the same footing, 
 
 magnatum upon the statutes 3 Edw. 1, c. 34. with respect to civil remedies, as their fellow 
 
 2 R. 2, st. 1, c. 5. 12 R. 2, c. 11, is of a subjects. 
 
 civil, as well as of a criminal nature : and (s) Vin. Abr. tit. Contempt (A.) 44. Pool 
 
 was formerly had recourse to in case of de- v. Sacheverel, 1720. 
 
 famation of any of the great officers and (0 R. v. Watson, 2 T. R. 199.
 
 chap, xxviii.] Libel and Indictable Slander. 625 
 
 merits of the verdict of a jury, or the decisions of a judge, provided 
 it be done with candour and decency. An information was filed 
 against the proprietors and printers of a Sunday newspaper for a 
 libel upon Le Blanc, J., and a jury, by whom a prisoner had been 
 tried for murder and acquitted ; and it was contended on the part of 
 the defendants that they had only made a fair use of their right to 
 canvass the proceedings of a court of justice. Grose, J., said that ' it 
 certainly was lawful, with decency and candour, to discuss the pro- 
 priety of the verdict of a jury, or the decisions of a judge ; and if the 
 defendants should be thought to have done no more in this instance, 
 they would be entitled to an acquittal : but, on the contrary, they had 
 transgressed the law, and ought to be convicted, if the extracts from 
 the newspaper, set out in the information, contained no reasoning or 
 discussion, but only declamation and invective, and were written not 
 with a view to elucidate the truth, but to injure the characters of 
 individuals, and to bring into hatred and contempt the administration 
 of justice in the country.' (it) 
 
 It seems that no indictment will lie for contemptuous words spoken 
 either of or to inferior magistrates, 1 unless they are at the time in the 
 actual execution of their duty, or at least unless the words affect them 
 directly in their office though it may be good cause for binding the 
 offender to his good behaviour, (v) This doctrine was recognized in a 
 case, where the defendant was indicted for saying of a justice of the 
 peace for the county of Middlesex, in his absence, that he was a 
 scoundrel and a liar, (w) Lord Ellenborough, C. J., said : ' The words 
 not being spoken to the justice, I think they are not indictable. This 
 doctrine is laid down by Lord Holt in a case in Salkeld ; (x) and in 
 B. v. Pocock (y) the Court of Queen's Bench refused to grant an informa- 
 tion for saying of a justice, in his absence, that he was a forsworn 
 rogue. However, I will not direct an acquittal upon this point, as it 
 is upon the record, and may be taken advantage of in arrest of judg- 
 ment. It will be for the jury now to say whether these words were 
 spoken of the prosecutor as a justice of the peace, and with intent to 
 defame him in that capacity ; for if they were not, this indictment 
 is not supported ; and it could not by possibility be a misdemeanor to 
 utter them, although the prosecutor's name may be in the commission 
 of the peace for the county of Middlesex.' (z) But it has been holden 
 to be an indictable offence to say of a justice of the peace, when in 
 the execution of his office, ' you are a rogue and a liar.' (a) The Court 
 will not, however, grant an information for calling a magistrate a liar, 
 accusing him of misconduct in having absented himself from an elec- 
 tion of clerk to the magistrates, and threatening a repetition of the 
 same language whenever such magistrate came into the town, unless 
 they tend to a breach of the peace, (b) 
 
 (u) R. v. White, 1 Campb. 359. And (w) R. v. Weltje, 2 Campb. 142. 
 
 see a note of another proceeding by informa- (x) R. v. Wrightson, 2 Salk. 698. 
 
 tion against the same defendants for a libel (y) 2 Str. 1157. And see R. v. Penny, 
 on Lord Ellenborongh, C. J. Holt on Libel, 1 Lord Raym. 153. 
 
 170, 171. (s) R, v. Weltje, 2 Campb. 142. 
 
 (v) 2 Starkie on Libel, 195. 1 Hawk. («) R. v. Revel, 1 Str. 420. 
 
 P C. c. 21, s. 13. (b) Ex parte Chapman, 4 A. & E. 773. 
 
 American Note. 
 1 In America it is held that words spoken person. See Bishop i. s. 470. But see S. 
 of official persons may be indictable slanders v. Wakefield, 8 Mo. Ap. 11. 
 which would not be so if spoken of a private 
 
 vol. i. — 40
 
 626 
 
 Libels on Private Individuals. 
 
 [book II. 
 
 Sec. X. 
 Libels on Private Individuals. 
 
 A general definition of a libel on an individual has already been 
 given, ante, p. 596. 
 
 As every person desires to appear agreeable in life, and must be 
 highly provoked by such ridiculous representations of him as tend to 
 lessen him in the esteem of the world, and take away his reputation, 
 which to some men is more dear than life itself ; it has been held that 
 not only charges of a flagrant nature, and which reflect a moral (c) 
 turpitude on the party, are libellous, but also such as set him in a 
 scurrilous, ignominious, or ludicrous (c£) light, whether expressed in 
 printing or writing, or by signs or pictures ; for these equally create 
 ill blood, and provoke the parties to acts of revenge and breaches of the 
 peace. (e) The sending to a young woman of a letter of such a defama- 
 tory character that it tended reasonably to provoke a breach of the 
 peace was held to be indictable as a libel. (/) 
 
 But it should be observed, that there is an important distinction 
 under this head between words spoken only, and words published by 
 writing or printing. Words spoken, however scurrilous, even though 
 spoken personally to an individual, are not the subject of indictment, 
 unless they directly tend to a breach of the peace, as if they convey 
 a challenge to fight, (g) But words, though not scandalous in them- 
 selves, if published in writing, and tending in any degree to the dis- 
 credit of a man, have been held to be libellous, (h) 
 
 Upon these principles it has been held to be libellous to write of a 
 man that he had the itch, and stunk of brimstone, (i) And an in- 
 formation was granted against the mayor of a town for sending to a 
 nobleman a licence to keep a public house, (j) An information was 
 also granted for a publication reflecting upon a person who had been 
 unsuccessful in a lawsuit ; (ft) and against the printer of a newspaper 
 for publishing a ludicrous paragraph, giving an account of the marriage 
 of a nobleman with an actress, and of his appearing with her in the 
 boxes with jewels, &c. (Z) A defendant was convicted for publishing 
 
 (c) A charge of ingratitude is actionable 
 as libel, Cox v. Lee, 38 L. J. Ex. 219. 
 
 (d) Cooke v. Ward, 6 Bing. 409. 4 M. 
 & P. 99. 
 
 (e) Ante, p. 596. Bac. Abr. tit. Libel 
 (A.) 2. So in the case of Thorlev v. Lord 
 Kerry, 4 Taunt. 364, Mansfield, C. J., de- 
 livering the opinion of the Court, said: 
 ' There is no doubt that this is a libel for 
 which the plaintiff in error might have been 
 indicted and punished, because, though the 
 words impute no punishable crimes, they 
 contain that sort of imputation which is 
 calculated to vilify a man, and bring him, 
 as the books say, into hatred, contempt, and 
 ridicule ; for all words of that description an 
 indictment lies.' And in R. v. Cobbett, 
 Holt on Libel, 114, 115, Lord Ellenborough, 
 C. J., said : ' No man has a right to render 
 the person or abilities of another ridiculous, 
 
 not only in publications, but if the peace and 
 welfare of individuals, or of society, be inter- 
 rupted, or even exposed by types and figures, 
 the act, bv the law of England, is a libel.' 
 
 (/) R." v. Adams, 22 Q. B. D. 66. See 
 also per Lush, J., R. v. Holbrook, 4 Q. B. 
 D. p. 46. 
 
 (g) R. v. Langlev, 6 Mod. 125. R. v. 
 Bear, 2 Salk. 417. By Holt, C. J., Villars 
 v. Monsley, 2 Wils. 403, and see 2 Starkie 
 on Libel, 208. Thorley v. Lord Kerry, 4 
 Taunt. 355. 
 
 {h) Bac. Abr. tit. Libel (A.) 2. Fray v. 
 Fray, 34 L. J. C. P. 45. 
 
 (i) Villars v. Monsley, 2 Wils. 403. 
 
 (j) The Mayor of Northampton's case, 
 1 Str. 422. 
 
 (£) 2 Barnard, 84. 
 
 (I) R. v. Kinnersley, 1 Blac. R. 294. It 
 was sworn that the nobleman was a married
 
 chap, xxviii.] Libel and Lndictable Slander. 627 
 
 a libel in a review, tending to traduce, vilify, and ridicule an officer of 
 high rank in the navy ; and to insinuate that he wanted courage and 
 veracity ; and to cause it to be believed that he was of a conceited, 
 obstinate, and incendiary disposition. (?«) And an information was 
 granted against a printer of a newspaper, for publishing a paragraph 
 containing a libel on the Bishop of Deny, by representing him as a 
 bankrupt. Qti) But in an action for publishing a libel by posting it 
 on a paper in the Casino-room at Southwold, containing these words, 
 ' The Rev. John Robinson and Mr. James Robinson, inhabitants of this 
 town, not being persons that the proprietors and annual subscribers 
 think it proper to associate with, are excluded this room,' the Court 
 of Exchequer held, that the publication was not a libel, as it did not 
 affect the moral character of the plaintiffs, nor state that they were 
 not proper persons for general society ; that the paper might import 
 no more than that the plaintiff was not a social and agreeable char- 
 acter in the intercourse of common life, (o) But where a count alleged 
 that the defendant published of the Duke of Brunswick the following 
 libel : ' Why should Theophilus be surprised at anything Mrs. W. 
 does ? If she chooses to entertain the Duke of Brunswick, she does 
 what very few will do ; and she is of course at liberty to follow the 
 bent of her own inclining, by inviting all the expatriated foreigners 
 who crowd our streets to her table, if she thinks fit ; ' the Court of 
 Exchequer Chamber held that the matter stated was libellous, as it 
 might be understood in such a sense as to be injurious to the prose- 
 cutor's character, (p) 
 
 A publication reflecting upon a man in respect of his trade may also 
 be libellous; as where A., a gunsmith, published in an advertisement 
 that he had invented a short kind of gun, that shot as far as others of 
 a longer size, and that he was gunsmith to the Prince of Wales ; and 
 B., another gunsmith, counter-advertised, 'That whereas, &c, [reciting 
 the former advertisement], he desired all gentlemen to be cautious, for 
 that the said A. durst not engage with any artist in town, nor ever did 
 make such an experiment, except out of a leather gun, as any gentle- 
 man might be satisfied at the Cross Guns in Long Acre, the said B.'s 
 house.' The Court held, that though B., or any other of the trade, 
 might counter-advertise what was published by A., yet it should have 
 been done without any general reflections on him in the way of his 
 business : that the advice to ' all gentlemen to be cautious,' was a 
 reflection upon his honesty ; and the allegation that he would not 
 engage with an artist was setting him below the rest of his trade, and 
 calling him a bungler in general terms ; and that the expression 
 ' except out of a leather gun ' was charging him with a lie, the word 
 gun being vulgarly used for a lie, and gunner for a liar, and that 
 therefore these words were libellous, (q) 
 
 Declaration, ' that the plaintiffs carried on the business of manufac- 
 
 man ; and the Court said, that under such (o) Robinson v. Jermyn, 1 Price, R. 11. 
 
 circumstances the publication would have (p) Gregory v. R., 15 Q. B. 957. 
 
 been a high offence even against a commoner, (q) Harman v. Delany, Barnard, K. B. 
 
 and that it was high time to stop such inter- 289. Fitzgib. 121. 2 Str. 898, S. C. See 
 
 meddling in private families. The Western Counties Manure Company v. 
 
 (m) B. v. Dr. Smollet, 1759. Holt on Lawes Chemical Manure Company, 43 L. J. 
 
 Libel, 224. Ex. 171. 
 
 (n) Anonymous, Hill, T. 1812.
 
 628 Libels on Private Individuals. [book ii. 
 
 turers of bags, and in such business invented, manufactured, and sold 
 great numbers of a bag called "The Bag of Bags," and the defendant 
 maliciously printed and published of and concerning the plaintiffs in 
 their business in a periodical called the " Tomahawk," the words follow- 
 ing : — " Novelty and enough. Let us [meaning the defendant] premise 
 our remarks that they are not a planned advertisement, and then let 
 us declare that Messrs. J. & K. [meaning the plaintiffs] have intro- 
 duced and largely advertised an article of their manufacture as the 
 Bag of Bags. As we have not seen the Bag of Bags, we cannot say 
 that it is useful or that it is portable or that it is elegant. All this 
 it may be, but the only point we can deal with is the title, which we 
 think very silly, very slangy, and very vulgar, and which has been 
 forced upon the notice of the public ad nauseam." ' Held, on demur- 
 rer, by the majority of the Court (Mellor, J., and Hannen, J.), that 
 the declaration was good, on the ground that it was a question for 
 the jury whether the article did not exceed the limits of fair criticism, 
 and tend to disparage the plaintiffs to the public in respect to their 
 mode of carrying on their business ; but by Lush, J., that the declara- 
 tion was bad, and that there was no evidence of a libel for the jury, 
 as there was nothing in the article which conveyed an imputation on 
 the character of the plaintiffs, or on the manner in which they con- 
 ducted their business, (r) 
 
 General imputations upon a body of men are indictable, though no 
 individuals may be pointed out. (s) An information was prayed 
 against the defendant for publishing a paper containing an account of 
 a murder committed upon a Jewish woman and her child, by certain 
 Jews lately arrived from Portugal, and living near Broad Street, 
 because the child was begotten by a Christian. (t~) It was objected 
 that no information should be granted in this case, because it did not 
 appear who in particular the persons reflected on were, (u) But the 
 Court said, that admitting that an information for a libel might be 
 improper, yet the publication of this paper was deservedly punishable 
 in an information for a misdemeanor, and that of the highest kind ; such 
 sort of advertisements necessarily tending to raise tumults and dis- 
 orders amongst the people, and inflame them with an universal spirit 
 of barbarity against a whole body of men, as if guilty of crimes scarcely 
 practicable, and wholly incredible, (ii) And if some of the individuals 
 affected by the libel are specified, it will be sufficient ; as where it was 
 objected that the names of certain trustees, who were part of the body 
 prosecuting, were not mentioned, Lord Hardwicke observed, that 
 though there were authorities where, in cases of libel upon persons 
 in their private capacities, it had been holden necessary that some 
 particular person should be named, this was never carried so far as to 
 make it necessary that every person injured by such libel should be 
 specified. (w) 
 
 (r) Jenner and another v. A'Beckett, 41 and threatened with death, in case they were 
 
 L. J. Q. B. 14. found abroad any more. 
 
 (s) Ante, p. 597. (») R. v. Orme, 3 Salk. 224. 1 Lord 
 
 (t) The affidavit set forth that several Raym. 486, was cited, 
 
 persons therein mentioned, who were re- (v) R. v. Osborne, Sess. Cas. 260. 2 
 
 cently arrived from Portugal, and lived in Barnard, 138, 166. Kel. 230, pi. 183. 
 
 Broad Street, were attacked by multitudes in (w) R. v. Griffin and others, Holt on 
 
 several parts of the city, barbarously treated, Libel, 239.
 
 chap, xxvm.] Libel and Indictable Slander. 629 
 
 Where a publication stated that, upon the death of her late Majesty, 
 none of the bells of the several churches of Durham were tolled ; and 
 ascribed this omission to the clergy, and then proceeded to make some 
 very severe observations on that body, a criminal information was 
 granted, (x) 
 
 A malicious defamation of one who is dead, if published with a 
 malevolent purpose, to vilify the memory of the deceased, and with 
 a view to injure his posterity, will be libellous; but it has been 
 holden that an indictment for a libel, reflecting on the memory of a 
 deceased person, cannot be supported, unless it state that it was done 
 with a design to bring contempt on his family, or to stir up the hatred 
 of the King's subjects against his relations, and to induce them to 
 break the peace in vindicating the honour of the family, (y) 
 
 Sec. XI. 
 
 Libels on Foreigners of Distinction, (z) 
 
 Upon the ground that malicious and scurrilous reflections upon 
 those who are possessed of rank and influence in foreign states may 
 tend to involve this country in disputes and warfare, it has been held 
 that publications tending to degrade and defame persons in consider- 
 able situations of power and dignity in foreign countries may be treated 
 as libels. 1 Thus an information was filed, by the command of the 
 Crown, for a libel on a French ambassador, then residing at the 
 British court, consisting principally of some angry reflections on his 
 public conduct, and charging him with ignorance in his official capac- 
 ity, and with having used stratagem to supplant and depreciate the 
 ■defendant at the court of Versailles. («) And Lord George Gordon 
 was found guilty upon an information for having published some se- 
 vere reflections upon the Queen of France, in which she was repre- 
 sented as the leader of a faction : upon which occasion Ashhurst, J., 
 observed, in passing sentence, that the object of the publication being 
 to rekindle animosities between England and France by the personal 
 abuse of the sovereign of one of them, it was highly necessary to re- 
 press an offence of so dangerous a nature : and that such libels might 
 be supposed to have been made with the connivance of the state 
 where they were published, unless the authors were subjected to pun- 
 ishment. (&) So a defendant was found guilty upon an information 
 charging him with having published the following libel : * The Empe- 
 
 (x) R. v. Williams, 5 B. & A. 597. of private persons. R. v. Labouchere, 12 
 
 (?/) R. v. Topham, 4 T. R. 126. Q. B. D. 320. 
 
 (z) An information for libel on deceased (a) R. v. D'Eon, 1 Black. Rep. 510. The 
 
 foreign nobleman will be refused because an defendant was convicted, 
 
 information will not be granted at the suit (b) R. v. Lord George Gordon, 1787. 
 
 American Note. 
 
 1 It seems that in America this particular States Courts have no common law jurisdic- 
 
 class of libel is without remedy, for it is tion. See Bishop i. ss. 177, 178, 190-203, 
 
 doubtful whether the State Courts can take and II. s. 938. 
 cognizance of such a libel, and the United
 
 630 Libels on Foreigners of Distinction. [book ii. 
 
 ror of Russia is rendering himself obnoxious to his subjects by various 
 acts of tyranny, and ridiculous in the eyes of Europe by his inconsist- 
 ency. He has lately passed an edict to prohibit the exportation of 
 deals and other naval stores. In consequence of this ill-judged law, 
 a hundred sail of vessels are likely to return to this country without 
 freight.' (c) 
 
 And in a case where the defendant was charged by an information 
 with a libel upon Napoleon Buonaparte, Lord Ellenborough, C. J., in 
 his address to the jury, said : ' I lay it down as law, that any publica- 
 tion which tends to degrade, revile, and defame persons in consider- 
 able situations of power and dignity in foreign countries, may be taken 
 to be and treated as a libel ; and particularly when it has a tendency 
 to interrupt the pacific relations between the two countries.' (d) 
 
 Sec. XII. 
 Indictment for Libel. 
 
 Having stated the different sorts of publications for which a party 
 may be found guilty of libel, we may mention some of the points 
 relating to the indictment on a prosecution for this offence. 
 
 An indictment for a libel must import to whom the libellous matter 
 referred ; and stating that the libel was published to defame and vilify 
 J. S., and to bring him into disgrace, and concluding that it was to 
 the great scandal and disgrace of J. S., is not sufficient to show that 
 the libellous matter referred to J. S. An indictment stated that the 
 defendant intended to vilify W. S., Mayor of Colchester, and a justice ; 
 and in order to cause it to be believed that W. S., as such mayor, had 
 been guilty of great abuse in granting an ale-licence to J. L., and in 
 order to bring him into great disgrace, published a certain scandalous 
 libel, in which said libel was contained, &c, and the libel stated a 
 speech supposed to have been made before the borough magistrates 
 by a fictitious character, called Excise, who was supposed to lay before 
 them a case of gross corruption, sanctioned by the mayor {innuendo 
 the said W. S.), to the great scandal, injury, and disgrace of the said 
 W. S. The usual allegation, that the libellous matter was of and 
 concerning W. S., was omitted ; and, on account of this omission, the 
 judgment was arrested, (e) Where a count alleged that the defendant 
 published of and concerning the Duke of Brunswick the following 
 libel : ' The evidence to facts in relation to the particular subject alluded 
 to is procuring ; and we have no doubt sufficient information will be 
 obtained for a strong case to lay before the Home Secretary, to enable 
 that functionary to cause it to be intimated to the suspected party 
 [meaning the said duke] that his presence here can be dispensed with, 
 
 (c) R. v. Vent, 1801. (e) R. v . Marsden, 4 M. & S. 164. Lord 
 
 (d) R. i'. Peltier. Holt on Libel, 78. 2 Ellenborough said, that if by inevitable 
 Starkie on Libel, 218. The defendant was construction no other person could have been 
 convicted, but never was called upon to re- intended but W. S., he should have been 
 ceive the judgment of the Court. Shortly inclined to support the indictment ; but 
 after the trial, war broke out between Great that did not appear. Clement v. Fisher, 7 
 Britain and France. B. & C. 459 ; 1 M. & R. 281, S. P.
 
 chap, xxviii. J Libel and Indictable Slander: 631 
 
 as it may be attended with danger to himself,' thereby meaning and 
 intending to have it believed that the said duke was suspected of 
 having committed and had committed some crime which would brin" 
 his life into danger from the laws of England ; the count was held bad 
 on error, because it did not show in what manner the life of the duke 
 would be endangered. (/) But where a count alleged that the defend- 
 ant, intending to defame the Duke of Brunswick, published a libel 
 containing divers false and malicious matters and things of and con- 
 cerning the said duke, that is to say : We should think that no lady 
 would admit to her society such a crack-brained scamp as the 
 Duke of Brunswick (meaning the said Duke), the Court of Exchequer 
 Chamber held that these averments showed sufficiently without 
 more formal introduction, that the libel was of and concerning the 
 duke, (g) 
 
 An information stated, that defendant, intending to excite hatred 
 against the government of the realm, and to cause it to be believed 
 that divers subjects had been inhumanly killed by certain troops of 
 the King, published a libel of and concerning the government of this 
 realm, and of and concerning the said troops, which libel stated, that 
 the defendant saw with abhorrence, in the newspapers, the accounts 
 of a transaction at Manchester, and alleged that unarmed and unre- 
 sisting men had been inhumanly cut down by the dragoons (meaning 
 the said troops), and then commented strongly upon this being the 
 use of a standing army, and called upon the people to demand justice, 
 &c. ; but it did not, in terms, say, that the dragoons acted under the 
 authority or orders of the government. After conviction, a motion 
 was made in arrest of judgment, on the ground that it did not suffi- 
 ciently appear that the libel was written of and concerning the govern- 
 ment, nor of or concerning what troops it was written : but the Court 
 held, that it was obvious, from its whole tenor and import, that it 
 meant to cast imputations upon the government; that it was a 
 libel to impute crime to any of the King's troops, though it did not 
 define what troops in particular were referred to ; and that the 
 innuendo of 'the said troops' meant the undefined part of those 
 troops. (7i) It is the duty of a judge to say whether a publication is 
 capable of the meaning ascribed to it by an innuendo ; but when the 
 judge is satisfied of that, it must be left to the jury to say whether 
 the publication has the meaning so ascribed to it. (t) 
 
 Where written or printed matter in itself imports a libel on a per- 
 son, no statement of extrinsic circumstances, by way of inducement, 
 is necessary. It is no objection, therefore, in arrest of judgment that 
 words are not explained by an innuendo where they are commonly 
 enough understood in a libellous sense to warrant a jury in so apply- 
 ing them ; (j) and if, in such a case, there be innuendos improperly 
 enlarging the sense, they may be rejected as surplusage after ver- 
 
 (/) Gregory v. R, 15 Q. B. 974. See Homeri\ Taunton, 5H.&N. 661, where 
 (g) Gregorys. R., 15 Q. B. 957. there was no innuendo to explain 'truck- 
 ed R. v. Burdett, 4 B. & A. 314. master,' and it was held that it was properly 
 (i) Blagg v. Sturt, 10 Q. B. 899 ; Hunt left to the jury to say whether it was used 
 v. Goodlake, 43 L. J. C. P. 54 ; Mulligan v. in a defamatory sense, though no evidence 
 Cole, 44 L. J. Q. B. 153. was given to explain its meaning. 
 (j) Hoare v. Silverlock, 12 Q. B. 624.
 
 632 Indictment for Libel. [book ii. 
 
 diet; (k) for on motion in arrest of judgment, or on error, an innuendo 
 which is not warranted by the words themselves, or properly con- 
 nected with them by prefatory matter, may be rejected. (I) But the 
 case would be different if the words were capable of two senses, and 
 the innuendo ascribed one meaning to them, and was good on the face 
 of it. (>?i) If there be contained in the alleged libel matter which is 
 capable of receiving the interpretation put upon it by an innuendo, 
 there is no fault in the count for not having explanatory averments to 
 fix and point the libel. But generally if the words written or spoken 
 cannot apply to the individual, no previous averments or subsequent 
 innuendos can help to give the words an application which they have 
 not. ' Suppose the words to be," a murder was committed in A.'s house 
 last night," no introduction can warrant the innuendo " meaning that 
 B. committed the said murder," nor would it be helped by the finding 
 of the jury for the plaintiff. For the Court must see that the words 
 do not and cannot mean it, and would arrest the judgment accord- 
 ingly.' (n) But if an innuendo ascribes to certain words a particular 
 meaning which cannot be supported in evidence, the innuendo, if well 
 pleaded in form, cannot be repudiated on the trial, so as to let in proof 
 that the words have another meaning, (o) If words be laid to be 
 uttered with intent to convey a particular meaning to persons present, 
 it must be proved that the party uttering them had that meaning, and 
 that they were so understood by the hearers. (j;>) In an indictment 
 for publishing an obscene book, it is not sufficient to describe the book 
 by its title only, but the words alleged to be obscene must be set out. 
 The defect will not be cured by a verdict of guilty, and the indict- 
 ment will be bad either upon arrest of judgment or upon error ; for 
 although an inaccurate averment may be cured by verdict, an aver- 
 ment which is totally absent cannot be supplied, (q) 
 
 Sec. XIII. 
 
 Evidence — Plea — Trial, &c. — Lord Campbell's Act. 
 
 It may be laid down generally that all who are concerned in com- 
 posing, writing, and publishing a libel, are guilty of the misdemeanor, 
 unless the part they had in the transaction was a lawful or an in- 
 nocent act. (V) Thus upon an information against the defendant, for 
 printing and publishing a libel, the evidence was, that he acted as 
 servant to the printer, and clapped down the press ; and few or no cir- 
 cumstances were offered of his knowing the import of the paper, or 
 being conscious that he was doing anything illegal ; and Baymond, C. J., 
 
 (k) Harvey v. French, 2 Tyrw. 585, 1 C. v. Meadows, 5 East, 470. See as to the office 
 
 & M. 11. and nature of an innuendo, 1 Stark, on Libel, 
 
 (I) Williams v. Stott, 3 Tyrw. 688 ; 1 C. 418, et seq. Clegg v. Laffer, 10 Bing. 250, 
 
 & M. 675. Per Bayley, B. 3 M. & S. 727- Day v. Robinson, 1 Ad. & 
 
 (m) Barrett v. Long, 3 H. L. C. 395. E. 554, 4 N. & M. 884. West v. Smith, 1 
 
 (n) Solomon v. Lawson, 8 Q. B. 823, per T. & G. 825. Kelly v. Partington, 5 B. & 
 
 curiam. Ad. 645. 
 
 (o) W T illiams v. Stott, supra. (?) Bradlaugh v. P., 3 Q. B. D. 607. 
 
 (p) Per Bayley, B., ibid., citing Woolnoth (r) Bac. Abr. tit. Libel (B.) 1.
 
 CHAP. XXVIII.] 
 
 Libel and Indictable Slander, 
 
 G33 
 
 held that this made the defendant guilty, and so the jury found him. (s) 
 But there must be a publication; and the mere writing or composing 
 a defamatory paper by any one, which is confined to his closet, and 
 neither circulated nor read to others, will not render him responsible ; 
 nor will he be held to have published the paper, if he deliver it, by 
 mistake, out of his study, (t) But this position admits of great doubt, 
 and two very great judges seem to have been of opinion, that one who 
 composes or writes a libel with intent to defame another, is guilty of 
 a misdemeanor, although the libel be not published, (u) A count 
 charging a defendant with having an obscene libel in his possession, 
 with intent to publish it, seems to be bad. (v) And it will not be a 
 publication of a libel if a party takes a copy of it, provided he never 
 publishes it ; (w) but a person who appears once to have written a libel, 
 which is afterwards published, will be considered as the maker of it, 
 unless he rebut the presumption of law by showing another to be the 
 author, or prove the act to be innocent in himself, (x) For by Holt, 
 C. J., if a libel appears under a man's handwriting, and no other author 
 is known, he is taken in the mainour, (j/) and it turns the proof upon 
 him ; and if he cannot produce the composer, it is hard to find that he 
 is not the very man. (z) Where the manuscript of a libel was in the 
 handwriting of the defendant, and a printer had printed five hundred 
 copies from it, three hundred of which had been posted about Bir- 
 mingham, but there was no evidence to connect the defendant with 
 the printing or the posting, except the handwriting, it was held, that 
 there was evidence to go to the jury that it was published by the 
 
 (s) B. v. Clerk, 1 Barnard, 304. Scclqu., 
 and vide Day v. Bream, post. 
 
 (t) R. v. Paine, 5 Mod. 165, 167. 
 
 (u) Lord Teuterden, C. J., and Holroyd, 
 J., in R. v. Burdett, 4 B. & A. 95. Lord 
 Tenterden said : ' The composition of a 
 treasonable paper intended for publication, 
 has, on more than one occasion, been held 
 an overt act of high treason, although the 
 actual publication had been intercepted or 
 prevented, and I have heard nothing on the 
 present occasion to convince my mind that 
 one who composes or writes a libel with 
 intent to defame, may not, under any circum- 
 stances, be punished, if the libel be not 
 published.' Holroyd, J., said,: ' Where a 
 misdemeanor has been committed by writing 
 and publishing a libel, the writing of such a 
 libel so published is in my opinion criminal, 
 and liable to be punished by the law of 
 England as a misdemeanor, as well as the 
 publishing of it.' And again, 'The com- 
 posing and writing, with intent and for the 
 purpose above stated, of a libel proved to 
 have been published by the defendant, is in 
 my opinion of itself a misdemeanor, in what- 
 ever county the publishing of it took place. ' 
 Upon the principle that an act done, and a 
 criminal intention joined to that act, are 
 sufficient to constitute a crime it should 
 seem that writing a libel with intent to de- 
 fame is a crime. C. S. G. 
 
 (v) R. v. Rosenstein, 2 C. & P. 414, J. A. 
 Park, J. This count seems clearly bad, on 
 
 the ground that no act was charged ; it is 
 precisely similar to R. v. Stewart, R. & R. 
 238. C. S. G. 
 
 (w) Com. Dig. tit. Libel (B.) 2. Lamb's 
 case, 9 Co. 596. But see R. v. Beare, 2 Salk. 
 417. 1 Lord Raym. 414. 
 
 (x) Bac. Abr. tit. Libel (B.) 1. Lamb's 
 case, 9 Co. 59. The writing a libel may be 
 an innocent act in the clerk who draws the 
 indictment, or in the student who takes 
 notes of it. But in Maloney v. Bartlev, 3 
 Campb. 210, Wood, B., held, on the trial of 
 an action for a libel, in the shape of an extra- 
 judicial affidavit sworn before a magistrate, 
 that a person who acted as the magistrate's 
 clerk was not bound to answer whether by 
 the defendant's orders he wrote the affidavit, 
 and delivered it to the magistrate, as he 
 might thereby criminate himself. 
 
 (//) A man was taken with the mainour, 
 mainouvre, when he was taken with tin- 
 thing stolen in his possession, or, as it was 
 termed in the ancient indictments, captus 
 cum manu opere, and when so taken he might 
 be brought into Court, arraigned, and tried 
 without a grand jury. 2 Hale, 14S. And 
 some lords of manors had jurisdiction to try 
 such cases ; for I have the record of such an 
 indictment for horse stealing, tried in the 
 Court of Leek, Staffordshire," in the 35 Edw. 
 1. C. S. G. 
 
 (;) R. v. Beare, 1 Lord Ravm. 417. 2 
 Salk. 417.
 
 634 Evidence — Plea — Trial, Etc. [book n. 
 
 defendant. («) So the sale of an obscene print to a person in a 
 private room, he having requested that such print should be shown 
 to him, his object being to prosecute the seller, is a sufficient publica- 
 tion, (b) Where, in an action for libel contained in a pamphlet, a 
 witness proved that the defendant gave her a pamnhlet, and that she 
 read parts of it, and that she had lent it to several persons, and it 
 was returned to her, but she could not swear the copy produced was 
 the same pamphlet the defendant gave her, but it was an exact copy, 
 if it was not the same, and she believed it to be the same, it was held 
 that this was sufficient evidence to be left to the jury, (c) 
 
 The reading of a libel in the presence of another, without previous 
 knowledge of its being a libel, or the laughing at a libel read by 
 another, or the saying that such a libel is made by J. S., whether 
 spoken with or without malice, does not amount to a publication. 
 And it has also been held, that he who repeats part of a libel in 
 merriment, without any malice or purpose of defamation, is not pun- 
 ishable, (d) In an action for a libel contained in a caricature print, 
 where the witness stated, that having heard that the defendant had a 
 copy of this print, he went to his house and requested liberty to see 
 it, and that the defendant thereupon produced it, and pointed out the 
 figure of the plaintiff and the other persons it ridiculed, Lord Ellen- 
 borough, C. J., ruled that this was not sufficient evidence of publica- 
 tion to support the action, (e) 
 
 Proof that the libel was contained in a letter directed to the party, 
 and delivered into the party's hands, is sufficient proof of a publica- 
 tion upon an indictment or information. (/) Addressing a letter to 
 a wife, containing matter reflecting on her husband, is a sufficient 
 publication to support an action. (^) And delivering a libel sealed, 
 in order that it may be opened and published by a third person in a 
 distant county, is a publication. (A.) The production of a letter con- 
 taining a libel with the seal broken, and the postmark on it, is prima 
 facie evidence of publication, (i) 
 
 In an information for a libel against the doctrine of the Trinity, 
 
 (a) R. v. Lovett, 9 C. & P. 462, Little- an action. Thus it has been held that where 
 dale, J. the action was brought for a libel contained 
 
 (b) R. v. Carlisle, 1 Cox, C. C. 229. in a letter transmitted by the defendant to 
 (r.) Fryer v. Gathercole, 4 Ex. R. 262. the plaintiff, by means of a third person, it 
 
 (d) Bac. Abr. tit. Libel (B.) 2. This is is a question for the jury whether there has 
 doubted in 1 Hawkins, P. C. c. 73, s. 14, on been any publication except to the plaintiff 
 the ground that jests of such a kind are not himself, and that if there has not, the 
 to be endured, and that the injury to the defendant is entitled to their verdict. Clut- 
 reputation of the party grieved is no way terbuck v. Chaffers, 1 Stark. R. 471. But 
 lessened by the merriment of him who makes in an action for a libel contained in a letter 
 so light of it. As to reading a libel in the written by the defendant to the plaintiff, it 
 hearing of others, knowing it to be such, was holden that proof that the defendant 
 being a publication of it, see Bac. Abr. Libel knew that the letters sent to the plaintiff 
 (B. )°2. were usually opened by his clerk, was evi- 
 
 (e) Smith v. Wood, 3 Campb. 323. And dence to go to the jury of the defendant's 
 see R. v. Paine, 5 Mod. 165, where a qu. is intention that the letter should be read by a 
 made in the margin, whether a person who third person. Delacroix v. Tbevenot, 2 
 has a libellous writing in Ins possession, and Stark. R. 63. 
 
 reads it to a private friend in his own house, [g) Wenman v. Ash, 13 C. B. 836. 
 
 is thereby guilty of publishing it. (h) R. v. Burdett, 4 B. & A. 95. 
 
 if) 1 Hawk. P. C. c. 73, s. 11. Bac. Abr. (i) "Warren v. Warren, 4 Tyrw. 850. 1 
 
 tit. Libel (B.) 2, n. (a), Selw. N. P. 1050, n. C. M. & R. 360. Shipley v. Todhunter, 7 
 
 (9). R. v. Brooke, 7 Cox, C. C. 251. A C. & P. 680. 
 further publication is necessary to support
 
 chap, xxviii.] Libel and Indictable Slander. 635 
 
 the witness for the Crown, who produced the libel, swore that it was 
 shown to the defendant, who owned himself the author of that book, 
 errors of the press and some small variations excepted. The counsel 
 for the defendant objected that this evidence would not entitle the 
 Attorney-General to read the book, because the confession was not 
 absolute, and therefore amounted to a denial that he was the author 
 of that identical book. But Pratt, C. J., allowed it to be read, saying 
 he would put it upon the defendant to show that there were material 
 variances. (/) 
 
 It seems to be agreed, that not only he who publishes a libel him- 
 self, but also he who procures another to do it, is guilty of the 
 publication ; and it is held not to be material whether he who dis- 
 perses a libel knew anything of the contents or effects of it or not, for 
 that nothing would be more easy than to publish the most virulent 
 papers with the greatest security, if the concealing the purport of 
 them from an illiterate publisher would make him safe in dispersing 
 them, (k) Where a reporter to a newspaper proved that he had given 
 a written statement to the editor of the paper, the contents of which 
 had been communicated to him by the defendant for the purpose of 
 such publication, and that the newspaper then produced was exactly 
 the same, with the exception of some slight alterations, not affecting 
 the sense ; it was held, that what the reporter published, in conse- 
 quence of what passed with the defendant, might be considered as 
 published by the defendant ; but that the newspaper could not be read 
 without producing the written account delivered by the reporter to 
 the editor. (I) 
 
 The defendant was indicted for causing to be published in a news- 
 paper a libel which told a story of the prosecutor, and added com- 
 ments on the story, giving it a ludicrous character. The editor of the 
 newspaper stated that the defendant had expressed a wish to him that 
 he would ' show up ' the prosecutor, and had told him the story. 
 The witness communicated it to a reporter for the paper, and the libel 
 was substantially what was so communicated. Before the publication 
 the defendant remarked to the witness that the article had not yet 
 appeared. After it had appeared, the defendant told the witness that 
 he had seen it, and that he liked it very much. The witness had 
 heard the story before the defendant told it him. The Court of 
 Queen's Bench held, that on this evidence the jury might find that the 
 defendant authorised the publication of this particular libel, notwith- 
 standing the comments added, as there were both a general authority 
 to publish, and an approval of the particular publication, (m) 
 
 In an action for libel the plaintiff complained of the publication in 
 certain newspapers of reports of the proceedings of a board of guar- 
 dians, containing defamatory statements concerning himself. At the 
 meeting at which the proceedings in question took place, reporters 
 
 (j) R. v. Hall, 1 Str. 416. be answerable for any libel written in pur- 
 life) Bac. Abr. tit. Libel (B.) 2. 1 Hawk, suance of his request : he contributes to a 
 
 P. C. c. 73, s. 10. misdemeanor, and is therefore responsible as 
 
 (0 Adams v. Kelly, R. & M. K P. C. a principal.' 'I have no doubt that a man 
 
 157 ; Parkes v. Prescott, 38 L. J. Ex. 105. who employs another generally to write a 
 
 (m) R. v. Cooper, 8 Q. B. 533. Lord libel must take his chance of what appears, 
 
 Denman, C. J., said: 'If a man request though something maybe added which be 
 
 another generally to write a libel, he must did not state.'
 
 G36 Evidence — Plea — Trial, Etc. [book n. 
 
 were present in the discharge of their duty as representatives of news- 
 papers. One of the defendants was chairman of the meeting, and the 
 other was present and took part in the proceedings. The latter said 
 that he hoped the local press would take notice of 'this scandalous 
 case,' and requested the chairman to give an account of it. This he 
 accordingly did, and in the course of his statement said, ' I am glad 
 gentlemen of the press are in the room, and I hope they will take 
 notice of it' The other defendant thereupon said, ' And so do I.' 
 The reports complained of were afterwards inserted in the newspapers, 
 being somewhat condensed, but substantially correct, accounts of what 
 had been said at the meeting. These reports were set out in the decla- 
 ration, and constituted the libels complained of. The judge at the 
 trial directed a verdict for the defendants, on the ground that there 
 was no evidence of a publication by the defendants of these libels, to 
 which direction the plaintiff excepted. Held (per Keating, Montague 
 Smith, and Hannen, JJ., dissentientibus Byles and Mellor, JJ.), that 
 the direction was wrong, and that there was evidence for the jury. 
 Per Byles, J., ' There is a distinction between the authority which will 
 make a man liable criminally, and that which will make him liable 
 civilly for the acts of another.' (n) 
 
 It was for a long time held, that the buying of a book or paper con- 
 taining libellous matter, in a bookseller's shop, was sufficient evidence 
 to charge the master with the publication, although it did not ap- 
 pear that he knew of any such book being there, or what the contents 
 thereof were, and though he was not upon the premises, and had been 
 kept away for a long time by illness ; and it would not be presumed 
 that it was bought and sold there by a stranger , but the master must, 
 if he suggested anything of this kind in his excuse, prove it. (o) So 
 the proprietor of a newspaper was answerable criminally as well as 
 civilly for the acts of his servants in the publication of a libel, although 
 it could be shown that such publication was without the privity of 
 the proprietor \(p) for a person who derives profit from, and who fur- 
 nishes means for, carrying on the concern, and entrusts the conduct 
 of the publication to one whom he selects, and in whom he confides, 
 may be said to cause to be published what actually appears, and ought 
 to be answerable, although it cannot be shown that he was individually 
 
 (n) Parkes v. Prescott and Ellis, 38 L. J. would result from the arguments relied on 
 
 Ex. 105, et per Montague Smith, J., whilst to sustain the defendant's contention, 
 
 delivering the judgment of the majority of (o) Bac. Abr. tit. Libel (B. ) 2. R. v. 
 
 the Court : ' In the result, I come to the Nutt, Fitzgib. 47. 1 Barnard. K. B. 306. 
 
 conclusion that, on principle it is correct to 2 Sess. Cas. 33, pi. 38. And see also R. v. 
 
 hold that, where a man makes a request to Almon, 5 Burr. 2686. And by Lord Hard- 
 
 another to publish defamatory matter, of wicke, in 2 Atk. 472. 'Though printing 
 
 which, for the purpose, he gives him a state- papers and pamphlets is a trade by which 
 
 ment, whether in full or in outline, and the persons get their livelihood, yet they must 
 
 agent publishes that matter, adhering to the take care to use it with prudence and 
 
 sense and substance of it, although the Ian- caution ; for if they print anything that is 
 
 guage be to some extent his own, the man libellous, it is no excuse to say that the 
 
 making the request is liable to an action as printer had no knowledge of the contents, 
 
 the publisher. If the law were otherwise, it and was entirely ignorant of its being 
 
 would, in many cases, throw a shield over libellous.' 
 
 those who are the real authors of libels, and (/;) R. v. Walter, 3 Esp. N. P. C. 21 ; R. 
 
 who seek to defame others under what would v. Dod, 2 Sess. Cas. 33, pi. 38. In 1 Hawk, 
 
 then be the safe shelter of intermediate P. C. c. 73, s. 10 (7th edit.). Woodfall's case, 
 
 agents. I make this observation only with Essay on Libels, p. 18. Salmon's case, B. 
 
 reference to the general consequences which R. Hil. 1777, and R. v. Almon, 5 Burr. 2687.
 
 chap, xxviii.] Libel and Indictable Slander. 637 
 
 concerned in the particular publication ; (q) and these are acts done 
 in the course of the trade or business carried on by the master. But 
 there were cases in which the presumption arising from the proprietor- 
 ship of a paper might be rebutted, (r) 1 See when this presumption can 
 now be rebutted, 6 & 7 Vict. c. 96, s. 7, noticed post, p. 647. 
 
 In an action for a libel, where it appeared upon the evidence that 
 the defendant, a tradesman, was accustomed to employ his daughter to 
 write his bills and letters ; that a customer, to whom a bill written by 
 the daughter had been sent by the daughter, sent it back on the 
 ground of the charge being too high, and that the bill was afterwards 
 returned to the customer, inclosed in a letter also written by the de- 
 fendant's daughter, and being a libel upon the plaintiff, who had 
 inspected and reduced the bill for the customer ; it was holden that 
 this was not sufficient evidence to go to a jury, either of command, 
 authority, adoption, or recognition by the defendant, (s) 
 
 The proceedings against the printers, publishers, and proprietors of 
 newspapers for any libel contained in such papers were much facili- 
 tated by the 38 Geo. 3, c. 78, which was repealed by the 6 & 7 Will. 
 4, c. 76. This statute also contained enactments facilitating such 
 proceedings. But these enactments, except sec. 19, are repealed 
 by 32 & 33 Vict. c. 24. Sec. 19 enacts that, 'If any person shall 
 file any bill in any court for the discovery of the name of any person 
 concerned as printer, publisher, or proprietor of any newspaper, or 
 of any matters relative to the printing or publishing of any news- 
 paper, in order the more effectually to bring or carry on any suit or 
 action for damages alleged to have been sustained by reason of any 
 slanderous or libellous matter contained in any such newspaper re- 
 specting such person, it shall not be lawful for the defendant to plead 
 or demur to such bill, but such defendant shall be compellable to 
 make the discovery required ; provided always that such discovery 
 shall not be made use of as evidence or otherwise in any proceeding 
 against the defendant, save only in that proceeding for which the 
 discovery is made.' (t~) 
 
 By 39 Geo. 3, c. 79 (an Act for the more effectual suppression of 
 societies established for seditious and treasonable purposes, and for 
 better preventing treasonable and seditious practices), s. 29, ' Every 
 person who shall print any paper for hire, reward, gain, or profit shall 
 carefully preserve and keep one copy (at least) of every paper so 
 printed by him or her, on which he or she shall write, or cause to be 
 written or printed, in fair and legible characters, the name and place 
 of abode of the person or persons by whom he or she shall be em- 
 ployed to print the same ; and every person printing any paper for 
 
 (q) R. v. Gutch, Moo. & M. 433, Lord daughter could not be compelled to prove by 
 
 Tenterden, C. J. whose direction the letter was written. The 
 
 (r) R. v. Gutch, Moo. & M. 433, Lord answer would tend to fix herself with the 
 
 Tenterden, C. J., and see R. v. Almon, 5 crime of writing it. 
 
 Burr. 2686. (t) Proceedings against proprietors of 
 
 (s) Harding v. Greening, 8 Taunt. 42. newspapers are now governed by the provi- 
 
 And it was also held in this case that the sions of 51 & 52 Vict. c. 64. See <mte. 
 
 American Note. 
 i See Bishop i. s. 221.
 
 638 Evidence — Plea — Trial, Etc. [book ii. 
 
 hire, reward, gain, or profit, who shall omit or neglect to write, or 
 cause to be written or printed as aforesaid, the name and place of his 
 or her employer on one of such printed papers, or to keep or preserve 
 the same for the space of six calendar months next after the printing 
 thereof, or to produce and show the same to any justice of the peace 
 who within the said space of six calendar months shall require to see 
 the same, shall for every such omission, neglect, or refusal, forfeit 
 and lose the sum of twenty pounds.' 
 
 By sec. 31, ' nothing herein contained shall extend to the impres- 
 sion of any engraving, or to the printing by letterpress of the name, 
 or the name and address, or business or profession, of any person, and 
 the articles in which he deals, or to any papers for the sale of estates 
 or goods by auction or otherwise.' 
 
 Sees. 34, 35 & 36 relate to the recovery of the penalties. This 
 Act, by 51 Geo. 3, c. 65, does not require the name and residence of 
 printers to be put to bank notes, bills, &c, or to any paper printed 
 by authority of any public board or public office. See 32 & 33 
 Vict. c. 24. 
 
 By 2 & 3 Vict. c. 12, s. 2, ' Every person who after the passing of 
 this Act shall print any paper or book whatsoever which shall be 
 meant to be published or dispersed, and who shall not print upon the 
 front of every such paper, if the same shall be printed on one side 
 only, or upon the first or last leaf of every paper or book which shall 
 consist of more than one leaf, in legible characters, his or her name 
 and usual place of abode or business ; and every person who shall 
 publish or disperse, or assist in publishing or dispersing, any printed 
 paper or book on which the name and place of abode of the person 
 printing the same shall not be printed as aforesaid, shall for every 
 copy of such paper so printed by him or her forfeit a sum not more 
 than five pounds. Provided always, that nothing herein contained 
 shall be construed to impose any penalty upon any person for print- 
 ing any paper excepted out of the operation of the said Act of the 39 
 Geo. 3, c. 79, either in the said Act or by any Act made for the 
 amendment thereof.' 
 
 By sec. 3, in the case of books or papers printed at the Univer- 
 sity Press of Oxford, or the Pitt Press of Cambridge, the printer, 
 instead of printing his name thereon, shall print the following words : 
 ' Printed at the University Press, Oxford,' or ' The Pitt Press, 
 Cambridge,' as the case may be. 
 
 By sec. 4, no actions, &c. for penalties are to be commenced ex- 
 cept in the name of the Attorney or Solicitor-General in England or 
 the Queen's Advocate in Scotland. See 32 & 33 Vict. c. 24. 
 
 Before the 38 Geo. 3, c. 78, it was holden, upon an indictment for a 
 libel in a newspaper, that evidence that the paper had been sold at 
 the office of the defendant, that the defendant, as proprietor of the 
 paper, had given a bond to the stamp office pursuant to the 29 Geo. 3, 
 c. 50, s. 10, for securing the duties on the advertisements, and that he 
 had from time to time applied to the stamp office respecting the duties 
 on the paper, was evidence to be left to the jury, to show that the 
 defendant was the publisher, (u) And since the statute it has been 
 
 (u) R. v. Topham, 4 T. R. 126.
 
 chap, xxviii.] Libel and Indictable Slander. 639 
 
 held to be sufficient evidence of a publication at common law to put 
 in the original affidavit of the proprietor stating where the paper was 
 to be published, and to prove that a paper with a corresponding title, 
 containing the libel, was purchased there, (v) This was held in a 
 case where it had been previously ruled that in order to render the 
 certified copy of the affidavit made by the proprietor of a newspaper 
 evidence under the 38 Geo. 3, c. 78, it must either appear upon the 
 jurat that the person before whom it was made had authority to take 
 it, or this fact must appear aliunde, (w) So the delivery of a news- 
 paper to the officer at the stamp office is a sufficient publication to 
 sustain an indictment for a libel in the paper, (x) So proof that the 
 defendant, as proprietor of the newspaper in which a libel is contained, 
 accounted with the distributor of stamps for. the duty on advertise- 
 ments in the paper, is sufficient evidence of a publication by the 
 defendant. Q/) An affidavit according to the repealed statute 38 Geo. 
 3, c. 78, together with the production of a newspaper, corresponding in 
 every respect with the description of it in the affidavit, was not only 
 evidence of the publication of such paper by the parties named, but 
 was also evidence of its publication in the county where the printing of 
 it was described to be. (2) Where in an action for libel in a newspaper 
 a certified copy of the stamp office declaration was put in, which 
 stated the title of the paper to be ' The Leicester Herald and Midland 
 Counties Advertiser,' and the intended place of publication to be ' No. 
 23, Charles Street, in the parish of St. Margaret, in the borough of 
 Leicester,' and the paper containing the libel had the same title, but 
 the place of publication was ' at the corner of Charles Street and 
 Hadfield Street, in the parish of St. Margaret, in the borough of 
 Leicester;' Lord Denman, C. J., held that the evidence of identity was 
 sufficient («) to enable the plaintiff to put the newspaper in evidence 
 under the 8th section of 6 & 7 Will. 4, c. 76 (now repealed). But if 
 the affidavit from the stamp office and the paper varied in the place 
 where the paper was stated to be printed, as where the affidavit stated 
 it to be ' in Union Street, Castle Street,' and the paper ' in Union 
 Buildings, John Street,' the production of the affidavit and paper was 
 not sufficient. (5) So where the affidavit described the proprietor's 
 residence to be in ' Red Lion Street, St. Ann's Square,' and on the 
 paper it was described as in ' St. Ann's Square ; ' Lord Tenterden held 
 that as the party was not excluded from other proof of publication, if 
 he relied on the statutory proof he must bring himself within the 
 statute, and that the discrepancy was fatal, (c) In moving for a 
 criminal information a prosecutor was not bound to adopt the statu- 
 tory proof, but if he adopted any other, the publication must have been 
 shown by some direct proof, (d) 
 
 (v) R. v. White, 3 Campb. 100. (a) Baker v. Wilkinson, C. & M. 399. 
 
 (w) R. v. White, 3 Campb. 99. (b) R. v. Francevs, 2 Ad. & E. 49. 
 
 (x) R. v. Amphlit, 4 B. & C. 35. (c) Murray v. Souter, cited 6 Bing. 414, 
 
 {y) Cook v. Ward, 6 Bing. 409, 4 M. & P. in Cook v. Ward. 
 99. (d) R. v. Baldwin, 8 A. & E. 168, and 
 
 (z) R. v. Hart, 10 East, 94. Mayne v. see Watts v. Fraser, 7 A. & E. 223 ; R. v. 
 
 Fletcher, 9 B. & C. 382, 4 M. & R. 311 ; K. Stanger, 40 L. J. Q. B. 96 ; R. v. Pearce, 
 
 v. O'Connell, 1 Cox, C. C. 405 ; R. v. Don- Peake's N. P. C. 75. 
 nison, 4 B. & Ad. 698. Per Littledale, J., 
 R. v. Wooliner, 12 A. & E. 422.
 
 GJrO Evidence — Plea — Trial, Etc. [book ii. 
 
 Where in an action for libel to prove that the defendant, Harnier, 
 was the proprietor of the ' Sun ' newspaper, a certified copy of the 
 declaration made at the stamp office under the repealed enactment 
 6 & 7 Will. 4, c. 76, s. 6, was put in, and it was a joint declaration, 
 and stated that, ' We are the sole proprietors ; that is to say, the said 
 James Harnier, as legal owner as mortgagee, and Murdo Young, as 
 owner of the equity of redemption,' it was objected that this declara- 
 tion showed that the defendant was a mortgagee only, and not a pro- 
 prietor against whom an action for libel could be maintained ; but 
 Lord Campbell, C. J., held that the defendant was liable, (e) 
 
 Upon the trial the libel must in general be produced on the part of 
 the prosecution, and after sufficient proof of a publication by the 
 defendant, may be read ; and if the libel has merely been exhibited 
 by the defendant, and he refuses on the trial to produce it, after 
 notice for that purpose, parol evidence may be given of its contents. (/) 
 The libellous matter must be set out in the indictment ; (g) and the 
 libel proved must appear to correspond with the statement of it in 
 the indictment, and any variation in the sense between the matter 
 charged and that proved will be fatal, (h) But the mere alteration of 
 a single letter, so long as it does not change one word into another, 
 will not vitiate ; though the smallest variance, if it renders the mean- 
 ing different, will be fatal, (i) As to amendments of variances at the 
 trial, see ante, p. 53. 
 
 The libel must also be proved to have been published, by the party 
 accused, in the county laid in the indictment, (j ) But if a man write 
 a libel in one county and consent to its publication in another, the 
 consent is sufficient to charge him in the latter county, (Jc) So if a 
 man write a libel in London, and send it by post addressed to a person 
 in Exeter, he is guilty of a publication in Exeter. (I) And where the 
 defendant wrote a libel in Leicestershire, with intent to publish it in 
 Middlesex, and published it in Middlesex accordingly, and the infor- 
 mation against him was in Leicestershire, three of the judges held 
 the information right : but Bailey, J., doubted, (m) From the same 
 case it appears to have been considered that delivering a libel sealed, 
 in order that it may be opened and published by a third person in a 
 distant county, is a publication in the county in which it is so delivered : 
 and further, that if delivering it open were essential, proof that the 
 defendant wrote it in county A., and that C. delivered it unsealed to 
 D. in county B., would be prima facie evidence that the defendant 
 delivered it open to C, in the county A., though there be no evidence 
 of C.'s having been in county A. about the time ; or that application 
 had been made to D. to know of whom he received it. The informa- 
 
 (e) Duke of Brunswick v. Harnier, 3 C. the indictment ? but if any part qualifies the 
 
 & K. 10. rest, it may he given in evidence, 2 Salt. 
 
 (/) By Buller, J., in R. v. Watson and 417. See the 9 Geo. 4, c. 15, and 14 & 15 
 
 others, 2 T. R. 201. Vict. c. 100, s. 1. 
 
 (g) R. v. Sacheverell, 15 Sta. Tri. 466. (i) R. v. Beech, 1 Leach, 133 ; R. v. 
 
 (h) Tabart v. Tipper, 1 Campb. 352. And Hart, 1 Leach, 145. 
 
 if it appears upon the proof that parts of the [j) Case of the Seven Bishops, 12 St. Tri. 
 
 libel which are separated by intervening 354. 
 
 matter are set forth as if they were continu- (k) 12 St. Tr. 331. 
 
 ous, it will be bad, if the sense is altered by (/) Id. ibid. 332. 
 
 the passage omitted. Id. ibid. It is settled (m) R. v. Burdett, 4 B. & A. 95. 
 that the whole libel need not be set forth in
 
 chap, xxviii.] Libel and Indictable Slander. 641 
 
 tion was in the county of Leicester, for writing and publishing a libel : 
 and it was proved by the date of the letter that the defendant wrote 
 it in that county, and that Bickersteth delivered it to Brooks for publi- 
 cation in the county of Middlesex, it being then unsealed. Bicker- 
 steth was not called as a witness ; and there was no evidence of his 
 having been in the county of Leicester, or how the libel came to him. 
 The jury were told that as Bickersteth had it open, they might pre- 
 sume that he received it open ; and that, as the defendant wrote it in 
 the county of Leicester, it might be presumed that Bickersteth 
 received it in that county ; and three judges held against the opinion 
 of Bayley, J., that this direction was proper ; and they also held that 
 if the delivering open could not be presumed, a delivery sealed with a 
 view to and for the purpose of publication was a publication ; and 
 they thought there was sufficient ground for presuming some delivery, 
 either open or sealed, in the county of Leicester, (n) It appears fruin 
 this case that the dating a libel at a particular place is evidence of its 
 having been written at that place, (o) The postmark upon a letter 
 has been considered as no evidence for the purpose of proving that 
 the letter was put into the post-office at the place mentioned by such 
 postmark, (j)) But it appears to be the better opinion that such post- 
 marks, whether in town or country, proved to be such, are evidence 
 that the letters on which they exist were in the offices to which the 
 postmarks belong at the dates thereby specified, (q) But a mark of 
 double postage having been paid on such letter is not of itself 
 sufficient evidence that the letter contained an enclosure, (r) If a libel- 
 lous letter is sent by the post, addressed to a party at a place out 
 of the county in which the venue is laid in an indictment for the 
 libel, yet, if it were first received by him within that county, it is a 
 sufficient publication to support the indictment, (s) Owning the 
 signature to a libel is no evidence in what county it was signed. This 
 was held in the celebrated case of the Seven Bishops ; but additional 
 evidence being afterwards given that the bishops applied to the Lord 
 President of the Council about delivering a petition to the King, and 
 that they were admitted to the King for that purpose in Middlesex, 
 the case was left to the jury, (t) It has been held to be sufficient to 
 prove a defendant to have published a libel without proving him to 
 
 (n) Ibid., and MS. Bayley, J. answer was returned in the register, after 
 
 (o) R. v. Burdett, 4 B. & A. 95. which he received two letters in the same 
 
 {p) R. v. Watson, 1 Campb. 215. Lord handwriting directed as mentioned, and 
 
 Ellenborough, C. J., said the postmark having the Irish postmark on the envelopes, 
 
 might have been forged. which two letters were proved to be in the 
 
 (q) R. v. Plumer, Hil. T. 1814. MS. handwriting of the defendant, the previous 
 
 Bayley, J., and R. & R. 264. R. v. Johnson, letter having been destroyed, it was held 
 
 7 East, 65. 2 Stark. Evid. 456, and Fletcher that this was a sufficient ground for the Court 
 
 v. Braddyll, note (g), ibid. to have the letters read ; and the letters 
 
 (r) R. v. Plumer, supra, note (q). Some themselves containing expressions of the 
 
 person who paid or received the postage writer, indicative of his having sent them to 
 
 should be called. the publisher of the register in Middlesex 
 
 (s) R. v. Watson, 1 Campb. 215 ; and see for the purpose of publication, the whole was 
 
 R. v. Middleton, 1 Str. 77. In the case of evidence sufficient for the jury to find a 
 
 R. v. Johnson, 7 East. 65, the publisher of publication by the procurement of the de- 
 
 a public register received an anonymous fendant in Middlesex. 
 
 letter, tendering certain political information (t) Case of the Seven Bishops, 12 St. Tri. 
 
 on Irish affairs, and requiring to know to 183. 
 whom letters should be directed, to which an 
 VOL. I. — 41
 
 642 Evidence — Plea — Trial, Etc. [book ii. 
 
 have composed it, upon a count in an information charging him with 
 having ' composed, printed, and published ' it. (u) So if the defendant 
 is charged by a count in an indictment with having ' composed, 
 'printed, and published ' a libel, if the evidence be that he only com- 
 posed and published it, he may be found guilty of the composing and 
 publishing, and acquitted of the printing, (v) 
 
 If the libel be in a foreign language, as it is necessary that it should 
 be set forth in the indictment in the original language, and also in an 
 English translation, it will be necessary to prove the translation to be 
 correct, (iv) 
 
 Where an information for libel stated that the prosecutor had 
 received certain anonymous letters, and that the defendant pub- 
 lished a libellous placard of and concerning those letters, and the 
 placard asked, ' Were you not warned that your character was at 
 stake ? ' and the prosecutor stated that he should not have under- 
 stood the meaning of the placard if he had not also seen the letters, 
 and that he understood the passage in the placard to allude to the 
 letters, it was held that the letters were admissible without proving 
 who wrote or sent them, as the placard referred to them, and would 
 not be intelligible without them, and that a defendant, who refers 
 to other papers in his publication, must submit to have them read 
 as explanatory of such publication, (x) 
 
 Depositions taken before a magistrate were not evidence upon a 
 trial for a libel, under the 1 & 2 Ph. & M. c. 13, and 2 & 3 Ph. & M. 
 c. 10, {y) which extended only to cases of felony, (z) But as the 
 11 & 12 Vict. c. 42, extends to misdemeanors, it should seem that 
 such depositions would now be evidence. («) A Gazette is evidence 
 to prove an averment in an information for a libel, ' that divers 
 addresses, &c, had been presented to his Majesty by divers of his 
 loving subjects.' (5) The King's proclamation, reciting that it had 
 been represented that certain outrages had been committed in differ- 
 ent parts of certain counties, and offering a reward for the discovery 
 and apprehension of offenders, had been held admissible evidence to 
 prove an introductory averment, in an information for a libel, that 
 divers acts of outrage had been committed in those parts, (c) And 
 a preamble to an Act of Parliament, reciting the existence of such 
 outrages, and making provision against them, was also held to be 
 admissible for the same purpose, id) 
 
 The criminal intention of the defendant will be matter of inference 
 from the nature of the publication. Where a libellous publication 
 appears, unexplained by any evidence, the jury should judge from the 
 overt act ; and, where the publication contains a charge slanderous in 
 its nature, should from thence infer that the intention was malicious, (e) 
 It is a general rule that an act unlawful in itself, and injurious 
 to another, is considered both in law and reason to be done malo 
 
 {u) R. v. Hunt, 2 Campb. 583. (a) See Vol. III., Evidence. 
 
 (v) R. v. Williams, 2 Campb. 646, Law- (b) R. v. Holt, 5 T. R. 436. 
 
 rence, J., R. v. Knell, 1 Barnard, 305. (c) R. v. Sutton, 4 M. & S. 532. 
 
 (w) R. v. Peltier, Selvv. X. P. 1048. (d) Id. ibid. 
 
 (x) R. v. Slaney, 5 C. & P. 213, Lord (e) Bv Lord Kenvon, C. J., in R. v. Lord 
 
 Tenterden, C. J. ' Abingdon. 1 Esp. 228. And see R. v. Top- 
 
 (y) Repealed bv 7 Geo. 4, c. 64, s. 33. ham, 4 T. R. 127, and R. v. Woodfall. 5 Burr. 
 
 (:) R. v. Paine.' 5 Mod. 163. 2667. Stuart v. Lovel, 2 Stark. R. 93.
 
 chap, xxviil] Libel and Indictable Slander. 643 
 
 animo towards the person injured ; and this is all that is meant by a 
 charge of malice in a declaration for libel, which is introduced rather 
 to exclude the supposition that the publication may have been made 
 on some innocent occasion than for any other purpose. (/) The inten- 
 tion may be collected from the libel, unless the mode of publication, 
 or other circumstances, explain it ; and the publisher must be pre- 
 sumed to intend what the publication is likely to produce ; so that if 
 it is likely to excite sedition, he must be presumed to have intended 
 that it should have that effect, (g) Publishing what is a libel without 
 excuse is indictable, though the publisher be free from what in com- 
 mon parlance is called malice ; for defaming wilfully without excuse 
 is in law malicious. And even if it could be an excuse, that the pub- 
 lisher held what he published to be true, it is not so if he professes to 
 publish it from authority. A newspaper contained this paragraph : 
 ' the malady under which his Majesty labours is of an alarming nature 
 [meaning insanity] ; it is from authority we speak.' At the trial of 
 the indictment for this publication, the jury asked if a malicious inten- 
 tion were necessary to constitute a libel ; to which Abbott, C. J., 
 answered, that a man must have intended to do what his act was 
 calculated to effect; and the jury found the defendant guilty. Upon 
 a motion for a new trial it was admitted that the paragraph was libel- 
 lous, but it was urged that malice was essential to make the defendant 
 criminal ; that he believed the King to have been so afflicted, and that 
 the answer to the question by the jury was incorrect. But the Court 
 thought otherwise, as the defendant must know if he spoke from 
 authority, and could have proved it ; and if malice were a question of 
 fact, a man must be presumed to have intended to produce the effect 
 which his act will naturally produce ; and libelling without excuse is 
 legal malice. (7i) A person who publishes matter injurious to the 
 character of another must be considered, in point of law, to have 
 intended the consequences resulting from that act,(i) for every man 
 must be presumed to intend the natural and ordinary consequences of 
 his own act. (/) The judge, therefore, ought not to leave it as a ques- 
 tion to the jury, whether the defendant intended to injure the person 
 libelled, but whether the tendency of the publication was injurious to 
 such person. (&) In some cases, however, the paper or other matter 
 may be libellous only with reference to circumstances which should 
 be laid before the jury by evidence. 
 
 In order to show the existence of actual malice in the mind of the 
 writer of a libel, other libels by him, whether written previously or 
 subsequently, are admissible in evidence. (/) Where the House of 
 Lords asked the judges ' in an action for libel, when the plea of the 
 general issue is pleaded, and also a plea under the 6 & 7 Vict. c. 96, 
 s. 1, denying actual malice, and stating the publication of an apology 
 set forth in the plea, is it admissible upon a trial for the plaintiff to give 
 evidence of other publications by the defendant (some of them more 
 
 (/) Per Lord Tenterden, C. J., Duncan (j) Per Lord Tenterden, C. J. Haire v. 
 
 v. Thwaites, 3 B. & C. 584, 585. Wilson, 9 B. & C. 643, 4 M. & R. 605. 
 
 {g) R. v. Burdett, 4 B. & A. 95. R. V. (k) Haire v. Wilson, supra. 
 
 Lovett, 9 C. & P. 462, Littledale, J. (1) Pearson v. Lemaitre, 5 M. & G. 700. 
 
 (h) R. v. Harvey, 2 B. & C. 257- Darby v. Ouseley, 1 H. & N. 1 ; Stuart v. 
 
 (i) Per Lord Tenterden, C. J. Fisher v. Lovel, 2 Stark. Rep. 93. 
 Clement, 10 B. & C. 472.
 
 644 Evidence — Plea — Trial, Etc. [book ii. 
 
 than six years before the publication complained of) of and concerning 
 the plaintiff, in order to prove malice against the defendant ? ' the 
 judges answered, ' We are all of opinion that, under such a plea, the 
 publication of the previous libels on the plaintiff by the defendant is 
 admissible evidence to show that the defendant wrote the libel in 
 question with actual malice against the plaintiff. A long practice of 
 libelling the plaintiff may show in the most satisfactory manner that 
 the defendant was actuated by malice in the particular publication, 
 and that it did not take place through carelessness or inadvertence ; 
 and the more the evidence approaches to the proof of a systematic 
 practice, the more convincing it is. The circumstance that the other 
 libels are more or less frequent, or more or less remote from the time 
 of the publication of that in question, merely affects the weight, not 
 the admissibility of the evidence.' And the House of Lords held 
 accordingly. (?n) 
 
 Where an information for libel alleged that a person unknown 
 murdered E. Grimwood, and that one Hubbard had been arrested on 
 the charge of committing the murder and discharged, and the libel set 
 out spoke of ' the acquittal of Hubbard for the murder of E. Grim- 
 wood ; ' it was held that the inducement was proved by evidence that 
 a person had been murdered, and that Hubbard had been charged with 
 the murder and afterwards discharged, and that at the inquest held 
 on the body witnesses called the deceased by the name of E. Grim- 
 wood, and that this last fact might be proved by the coroner, and that 
 he might for this purpose use an inquisition drawn up on paper. (?i) 
 
 Where a declaration for libel set out the following passage : ' We 
 would suggest to the ex-Duke of Brunswick the propriety of with- 
 drawing into his own natural and sinister obscurity ' (meaning thereby 
 to insinuate that the plaintiff was guilty of unnatural practices), 
 Lord Campbell, C. J., refused to permit a witness to be asked if he 
 had read the libel, and what he understood by the word ' natural ' 
 printed in italics, as it was for the jury to form their own opinion as 
 to what was meant by the word so printed, (o) 
 
 In an action for libel it appeared that the plaintiff, an attorney, was 
 employed by one Nash to bring an action against an executor ; and 
 that the defendant, who was employed to adjust the executor's ac- 
 counts, finding that an action was about to be commenced against the 
 executor, wrote a letter to Nash blaming him for allowing the plaintiff 
 to sue, and containing this passage, ' If you will be misled by an at- 
 torney, who only considers his own interest, you will have to repent 
 it ; you may think when you have once ordered your attorney to write 
 to Mr. G., he would not do any more without your further orders \ 
 but if you once set him about it, he will go any length without further 
 orders.' And it was held that the question whether this letter applied 
 to the plaintiff individually, or to the profession at large, was properly 
 left to the jury, (p) 
 
 The evidence for the defence will now depend upon the defendant's 
 pleas ; if he plead that the libellous matter is true, and that it was 
 
 (m) Barrett v. Long, 3 H. L. C. 395. See (o) Duke of Brunswick v. Harmer, 3 C. 
 
 Hemmings v. Gasson, E. B. & E. 346. & K. 10. 
 
 (n) R. v. Gregory, 8 Q. B. 508. (p) Godson v. Home, 3 Moore, 223.
 
 chap, xxviii.] Libel and Indictable Slander. 645 
 
 published for the public benefit, it will lie upon him to prove these 
 facts ; but if he plead not guilty only, then the evidence which can 
 be adduced on his behalf at the trial will in general be confined to 
 a very narrow compass. There may, however, be cases of a publica- 
 tion in point of law, where no criminal intention can be imputed to 
 the party ; as where a person delivers a letter without knowing its 
 contents, or delivers one paper instead of another ; (q) and evidence 
 to such effect may be produced. Where, therefore, an action was 
 brought against the porter of a coach for a libel contained in a hand- 
 bill, which he had delivered tied up in a paper parcel, evidence was 
 admitted that he delivered the parcel in the course of his business 
 without any knowledge of its contents, (r) But it is not competent 
 to the defendant to prove that a paper similar to that, for the pub- 
 lication of which he is prosecuted, was published on a former occasion 
 by other persons, who have never been prosecuted for it. (s) It was 
 held in a case where the supposed libel was contained in a news- 
 paper, that the defendant had a right to have read in evidence any 
 extract from the same paper, connected with the subject of the pas- 
 sage charged as libellous, although disjointed from it by extraneous 
 matter, and printed in a different character, (t) Though the defend- 
 ant cannot have the assistance of counsel to examine the witnesses, 
 and reserve to himself the right of addressing the jury, yet if he con- 
 ducts his defence himself, and any point of law arises which he pro- 
 fesses himself unable to argue, the Court will hear this argued by his 
 counsel, (u) 
 
 If a libel imputes to a man a triable offence, proof of the truth of 
 such imputation is inadmissible under a plea of not guilty. Where a 
 libel imputed murder to certain soldiers, evidence was offered of the 
 truth of such imputation, and rejected: and the Court of King's Bench 
 were unanimous that such evidence was rightly rejected, (v) 
 
 Where an information for a libel states that certain transactions 
 took place, and that the libel was published of and concerning them, 
 and then sets out the libel as referring to them, and general evidence 
 is given in proof of such transactions on the part of the prosecution, 
 the defendant cannot, therefore, give evidence of the particular nature 
 of those transactions so as to bring into issue the truth or falsehood of 
 the libel. But if such evidence were adduced, bona fide, to show that 
 the transactions referred to in the alleged libel are not the same with 
 those which the information supposes it to have had in view, it is 
 admissible, (w) 
 
 (q) By Lord Kenyon, C. J., in R. v. Top- libel. As for instance, suppose a paper were 
 ham, 4 T. R. 127, 128. R. v. Nutt, Fitz. to state that A. was on a given day tried at 
 47. a given place, and convicted of perjury ; if 
 (r) Day v. Bream, 2 M. & Rob. 54. that be true it may be no libel, but if false, 
 Patteson, J., who said ' prima facie he was it is from beginning to end calumnious, and 
 answerable, he had in fact delivered and put may no doubt be the subject of a criminal 
 into publication the libel complained of, and prosecution. Possibly, therefore, in such a 
 was therefore called upon to show his igno- case, evidence of the truth of such a state- 
 rance of the contents.' ment by the production of the record, might 
 (s) R. v. Holt, 5 T. R. 436. afford an answer to a prosecution for libel.' 
 (t) R. v. Lambert, 2 Campb. 398. Ibid, per Baylev, J., p. 147. R. v. Brig- 
 ht) R. v. White, 3 Campb. 98. stock, 6 C. & P. 184. See post, where the 
 (v) R. v. Burdett, 4 B. & A. 95. 'In defendant may plead that the libtdlous mat- 
 some cases, indeed, it is possible that the ters are true, 
 falsehood may be of the very essence of the (w) R. r. Grant, 5 B. & Ad. 10S1.
 
 646 Evidence — Plea — Trial, Etc. [book ii. 
 
 It had been held in many cases, that, on trials for libels, the facts 
 of writing, printing, or publishing, and the truth of the innuendos in- 
 serted in the proceedings, were the only matters to be submitted to 
 the consideration of the jury : but the justice of such doctrine being 
 questioned and ably arraigned, (&') the 32 Geo. 3, c. 60 (Fox's Act), 
 was passed, sec. 1 of which enacts ' that on every such trial, the jury 
 sworn to try the issue may give a general verdict of guilty or not 
 guilty, upon the whole matter put in issue upon such indictment or 
 information ; and shall not be required or directed, by the Court or 
 judge before whom such indictment or information shall be tried, to 
 find the defendants or defendant guilty, merely on the proof of the 
 publication by such defendant or defendants of the paper charged to 
 be a libel, and of the sense ascribed to the same in such indictment or 
 information.' By sec. 2, ' the Court, or judge before whotii such in- 
 dictment or information shall be tried, shall, according to their or his 
 discretion, give their or his opinion and directions to the jury, on the 
 matter in issue between the King and the defendant or defendants, in 
 like manner as in other criminal cases.' (y) 
 
 In criminal cases the judge is to define the crime, and the jury are 
 to find whether the party has committed that offence ; this Act made 
 it the same in cases of libel, the practice having been otherwise be- 
 fore, (z) It has been the course for a long time for a judge in cases 
 of libel, as in other cases of a criminal nature, first to give a legal 
 definition of the offence, and then to leave it to the jury to say, 
 whether the facts necessary to constitute that offence are proved to 
 their satisfaction ; and that, whether the libel is the subject of a 
 criminal prosecution or civil action. Whether the particular publica- 
 tion, the subject of inquiry, is calculated to injure the reputation of 
 another, by exposing him to hatred, contempt, or ridicule, is a ques- 
 tion upon which a jury is to exercise their judgment, and pronounce 
 their opinion as a question of fact. The judge, as a matter of advice 
 to them in deciding that question, may give his own opinion as to the 
 nature of the publication, but is not bound to do so. (a) 
 
 The Court will not sanction applications for a criminal information 
 for libel if they are only for the purpose of extorting an apology, nor 
 will it sanction a compromise of a prosecution when once before the 
 Court, as the object of a criminal information is the repression of 
 libels and not the mere vindication of the character of the person who 
 has been libelled, (b) 
 
 The judgment in cases of libel at common law is in the discretion 
 of the Court, as in most other cases of misdemeanors ; and usually con- 
 sists of fine, imprisonment, and the finding sureties to keep the 
 peace, (c) Judgment was given on each of four counts of an in- 
 
 (x) See the celebrated speeches of Mr. (a) Parmiter v. Coupland, supra, Baylis 
 
 Erskine, in the case of the Dean of St. v. Lawrence, 11 A. & E. 920. Paris v. Levy, 
 
 Asaph, Ridgway's Col. pp. 234, 264, vol. 1. 9 C. B. (N. S.) 342 ; R. v. Burdett, 4 B. & 
 
 (y) Sec. 3 provides that the jury may find A. 95; Fray v. Fray, 34 L. J. C. P. 45. 
 a special verdict, in their discretion, as in (b) R. v. 'The World,' 13 Cox, C. C. 
 
 other criminal cases. And sec. 4, that de- 305. 
 
 fendants may move in arrest of judgment as (c) 1 Hawk. P. C. c. 73, s. 21. Bac. 
 
 before the passing of the Act. Abr. tit. Libel (C.) R. v. Middleton, Fort. 
 
 (z) Per Parke, B. Parmiter v. Coupland, 201. R. v. Dunn, 12 Q. B. 1026. 
 6 M. & W. 105 ; Jenner v. A'Beckett, 41 L. 
 J. Q. B. 14.
 
 chap, xxviii.] Libel and Indictable Slander. 647 
 
 formation that trie defendant be imprisoned on the first count ' for 
 the space of two months now next ensuing ; ' on the second count, 
 ' for the further space of two months, to be computed from and after 
 the end and expiration of his imprisonment' for the offence mentioned 
 in the first count ; on the third count, for the further space of two 
 months, to be computed in like manner from the end of the imprison- 
 ment on the second count ; and on the fourth count, for the further 
 space of two months, to be computed in like manner from the end of 
 the imprisonment on the third count. The third count was adjudged 
 on error to be insufficient : but it was held, that the sentence on the 
 fourth count was not thereby invalidated, and that the imprisonment 
 on it was to be computed from the end of the imprisonment on the 
 second count. (cV) 
 
 In the case of a blasphemous or seditious libel, the 60 Geo. 3, & 
 1 Geo. 4, c. 8, s. 4, made a second offence punishable by banishment 
 from the King's dominions, or such punishment as might be inflicted 
 in cases of high misdemeanor; but the 11 Geo. 4 & 1 Will. 4, c. 73, 
 s. 1, repealed ' so much and such parts of that Act as relate to the 
 sentence of banishment for the second offence ; ' consequently the 
 common law punishment alone remains, (e) 
 
 Most important alterations were made in the law of libel by Lord 
 Campbell's Act. 1 By that Act, (/) 6 & 7 Vict. c. 96, s. 3, ' If any per- 
 
 (d) Gregory v. R.., 15 Q. B, 974. time of filing or delivering the plea in such 
 
 (e) A certificate of every indictment and action), to give in evidence, in mitigation of 
 conviction of any offender convicted of damages, that he made or offered an apology 
 having composed, &c, any blasphemous or to the plaintiff for such defamation before 
 seditious libel, is, by sec. 2 of the former Act, the commencement of the action, or as soon 
 to be given by the officer having the custody afterwards as he had an opportunity of doing 
 of the records, upon the request of the pros- so, in case the action shall have been com- 
 ecutor on his Majesty's behalf, to the justices menced before there was an opportunity of 
 of assize, &c. , where such offender shall be making or offering such apology.' 
 indicted for any second offence, and is to be Sec. 2. ' In an action for a libel contained 
 sufficient proof of the conviction of such in any public newspaper or other periodical 
 offender. And in all cases in which any publication it shall be competent to the de- 
 verdiet or judgment by default shall be had fendant to plead that such libel was inserted 
 against any person for publishing any bias- in such newspaper or other periodical publi- 
 phemous or seditious libel, the judge or court cation without actual malice, and without 
 may make an order for the seizure and carry- gross negligence, and that before the com- 
 ing away and detaining all copies of the libel mencement of the action, or at the earliest 
 in the possession of the party, or of any other opportunity afterwards, he inserted in such 
 person named in the order for his use. See newspaper or other periodical publication a 
 sees. 1, 2. Sees. 8 and 9 provide for the full apology for the said libel, or, if the 
 limitation of actions brought for anything newspaper or periodical publication in which 
 done in the execution of the Act. the said libel appeared should be ordinarily 
 
 (/) Sec. 1, ' for the better protection of published at intervals exceeding one week, 
 
 private character, and for more effectually had offered to publish the said apology in 
 
 securing the liberty of the press, and for any newspaper or periodical publication to be 
 
 better preventing abuses in exercising the selected by the plaintiff in such action ; and 
 
 said liberty,' enacts, ' that in any action for that every such defendant shall upon filing 
 
 defamation it shall be lawful for the defend- such plea be at liberty to pay into court a 
 
 ant (after notice in writing of his intention sum of money by way of amends for the in- 
 
 so to do, duly given to the plaintiff at the jury sustained by the publication of such 
 
 American Note. 
 1 In America, as in England under Lord found in the constitution of some of the 
 Campbell's Act, the truth of the libel may be States. See Barthelemv v. P., 2 Hill, N. Y. 
 given in evidence where the publication 'was 248 ; C. v. Bonner, 9 Met. 410 ; C. v. Snell- 
 made with good motives and for good ends, ing, 15 Pick. 337 ; S. v. White, 7 Ire. 180 ; 
 and in some cases this provision is to be Bishop i. s. 319, ii. s. 920.
 
 648 Lord Campbell's Act. [book ii. 
 
 son shall publish or threaten to publish any libel upon any other per- 
 son, or shall directly, or indirectly threaten to print or publish, or shall 
 directly or indirectly propose to abstain from printing or publishing, 
 or shall directly or indirectly offer to prevent the printing or publish- 
 ing, of any matter (g) or thing touching any other person, with intent 
 to extort any money or security for money, or any valuable thing 
 from such or any other person, or with intent to induce any per- 
 son to confer or procure for any person any appointment or office of 
 profit or trust, every such offender, on being convicted thereof, shall 
 be liable to be imprisoned, with or without hard labour, in the com- 
 mon gaol or house of correction, for any term not exceeding three 
 years : provided always, that nothing herein contained shall in any 
 manner alter or affect any law now in force in respect of the sending 
 or delivery of threatening letters or writings.' 
 
 Sec. 4. ' If any person shall maliciously publish any defamatory 
 libel knowing the same to be false, (h) every such person, being con- 
 victed thereof, shall be liable to be imprisoned in the common gaol or 
 house of correction for any term not exceeding two years, and to pay 
 such fine as the Court shall award.' 
 
 Sec. 5. ' If any person shall maliciously publish any defamatory 
 libel, every such person, being convicted thereof, shall be liable to 
 fine or imprisonment or both, as the Court may award, such imprison- 
 ment not to exceed the term of one year.' 
 
 Sec. 6. ' On the trial (i) of any indictment or information for a 
 defamatory libel, the defendant having pleaded such plea as herein- 
 after mentioned, the truth of the matters charged may be inquired 
 into, but shall not amount to a defence, unless it was for the public 
 benefit that the said matters charged should be published ; and that 
 to entitle the defendant to give evidence of the truth of such mat- 
 ters charged as a defence to such indictment or information it shall 
 be necessary for the defendant, in pleading to the said indictment 
 or information, to allege the truth of the said matters charged in 
 the manner now required in pleading a justification to an action 
 for defamation, and further to allege that it was for the public 
 benefit that the said matters charged should be published, and the 
 particular fact or facts by reason whereof it was for the public 
 benefit that the said matters charged should be published ; to which 
 plea the prosecutor shall be at liberty to reply generally, denying 
 the whole thereof ; and that if after such plea the defendant shall 
 be convicted on such indictment or information it shall be com- 
 
 libel, and such payment into court shall be Advancement of Justice ; " and that to such 
 
 of the same effect and be available in the plea to such action it shall be competent to 
 
 saim: manner and to the same extent, and be the plaintiff to reply generally, denying the 
 
 subject to the same rules and regulations as whole of such plea.' By the 8 & 9 Vict. 
 
 to payment of costs and the form of pleading, c. 75, s. 2, the defendant is to pay money 
 
 except so far as regards the pleading of the into court when the plea is filed ; and see 15 
 
 additional facts hereinbefore required to be & 16 Vict. c. 76, s. 70. 
 pleaded by such defendant, as if actions for (g) See R. v. Coghlan, 4 F. & F. 316. 
 
 libel had not been excepted from the personal (h) Upon an indictment for publishing a 
 
 actions in which it is lawful to pay money defamatory libel, ' knowing the same to be 
 
 into court under an Act passed in the session false,' the defendant may be convicted of 
 
 of Parliament held in the fourth year of his merelv publishing a defamatorv libel. Boaler 
 
 late Majesty, intituled " An Act for the fur- v. The Queen, 21 Q. B. D. 284. 
 ther Amendment of the Law and the better (*') See R. v. Townsend, 4 F. & F. 1089.
 
 chap, xxviii.] Libel and Indictable Slander. 649 
 
 petent to the Court, in pronouncing sentence, to consider whether 
 the guilt of the defendant is aggravated or mitigated by the said 
 plea, and by the evidence given to prove or to disprove the same : pro- 
 vided always, that the truth of the matters charged in the alleged 
 libel complained of by such indictment or information shall in no 
 case be inquired into without such plea of justification: provided 
 also that, in addition to such plea, it shall be competent to the 
 defendant to plead a plea of not guilty : provided also, that nothing 
 in this Act contained shall take away or prejudice any defence under 
 the plea of not guilty which it is now competent to the defendant 
 to make under such plea to any action or indictment or information 
 for defamatory words or libel.' 
 
 Sec. 7. ' Whensoever, upon the trial of any indictment or infor- 
 mation for the publication of a libel, under the plea of not guilty, 
 evidence shall have been given which shall establish a presumptive 
 case of publication against the defendant by the act of any other per- 
 son by his authority, it shall be competent to such defendant to prove 
 that such publication was made without his authority, consent, or 
 knowledge, and that the said publication did not arise from want of 
 due care or caution on his part.'(/) 
 
 Sec. 8. ' In the case of any indictment or information by a private 
 prosecutor for the publication of any defamatory libel, if judgment 
 shall be given for the defendant, he shall be entitled to recover from 
 the prosecutor the costs sustained by the said defendant by reason of 
 such indictment or information; (k) and that upon a special plea of 
 justification to such indictment or information, if the issue be found 
 for the prosecutor, he shall be entitled to recover from the defendant 
 the costs sustained by the prosecutor by reason of such plea, such costs 
 so to be recovered by the defendant or prosecutor respectively to be 
 taxed by the proper officer of the Court before which the said indict- 
 ment or information is tried.' (/) 
 
 Sec. 9. ' Wherever throughout this Act, in describing the plaintiff 
 or the defendant, or the party affected or intended to be affected by 
 the offence, words are used importing the singular number or the 
 masculine gender only, yet they shall be understood to include several 
 persons as well as one person, and females as well as males, unless 
 when the nature of the provision or the context of the Act shall exclude 
 such construction.' 
 
 Where one count charged the defendants with offering to prevent 
 the publishing, and another with threatening to publish certain mat- 
 ters of the prosecutor with intent to extort money, and the defendants 
 appeared to have attempted to obtain money from the prosecutor by 
 leading him to believe that an information for an offence relating to 
 the post-horse duties would be laid against him, and that they would 
 prevent it if he paid them a sum of money, it was held that the evi- 
 dence did not support the counts. Qui) 
 
 It has been held in Ireland that to an indictment for publishing in 
 a newspaper ' a certain false, defamatory, malicious, and seditious 
 
 0") See K. v. Holbrook, 3 Q. B. D. 60 ; (I) Such costs may be recovered by 
 
 4 Q. B. D. 42; R. v. Bradlaugh, 15 Cox, C. action, Richardson v. Willis, 8 L. R. Ex. 69; 
 
 C. 217 ; R. v. Ramsay, 15 Cox, C. C. 231. 42 L. J. Ex. 68. 
 
 (Jc) See post, p. 651. (m) R. v. Yates, 6 Cox, C. C. 441.
 
 650 Lord Campbell's Act. [book ii. 
 
 libel ' concerning her Majesty's Government and the Parliament of 
 the United Kingdom, with intent to create disaffection and hatred to 
 her Majesty's Government and the Parliament, a special plea of justi- 
 fication cannot be pleaded under the 6 & 7 Vict. c. 96, s. 6. (?t) 
 
 Where to a criminal information for a libel the defendant pleaded 
 a justification, alleging that the imputations contained in the libel 
 were true, it was held that it was not competent to the defendant to 
 prove that imputations identical with those in the libel had been pre- 
 viously published in a book, (o) 
 
 Where a justification is pleaded under the 6 & 7 Vict. c. 96, s. 6, to 
 an information for a defamatory libel, and the libel contains several 
 distinct imputations, and the plea alleges the truth of all, and is tra- 
 versed generally, if the evidence fail as to any one of them, the verdict 
 will be entered generally against the defendant. Where, therefore, 
 upon the trial of such an issue upon such a plea, evidence was offered 
 in support of some only of the imputations, and the jury found that 
 only one of the imputations upon which evidence was offered was 
 proved, the verdict was entered for the Crown generally ; as there can 
 be no partial finding for a defendant on the ground that a justification is 
 partially established, (p) But where the libel was general, to the 
 effect that the prosecutor was one of a gang of cardsharpers, and the 
 plea of justification alleged specific instances of cardsharping, and also 
 that the prosecutor confederated with others for the purpose of cheat- 
 ing, and did so cheat, at various places, it was held that it was sufficient 
 to prove the plea in substance, and that it was so proved by the jury 
 finding that in two instances the prosecutor did cheat at cards, and 
 that he did confederate with other persons for that purpose. (</) 
 
 By the express enactment that, wherever there is a conviction after 
 such a plea of justification 'the Court, in pronouncing sentence,' shall 
 ' consider whether the guilt of the defendant is aggravated or miti- 
 gated by the said plea, and by the evidence given to prove and disprove 
 the same,' the Court is to consider the evidence on the one side and 
 the other, and to form their own conclusion whether it aggravates or 
 mitigates the guilt of the defendant, and they are to apportion the 
 punishment accordingly. The evidence, as it appears on the notes of 
 the judge who presided at the trial, comes in place of affidavits in 
 aggravation and mitigation of punishment when sentence is to be pro- 
 nounced, and by that the sentence is to be regulated, and not by any 
 declaration of the jury as to the credit which they think ought to be 
 given to the witnesses, (r) 
 
 In such a case the defendant may, in mitigation of punishment, 
 show by affidavit that after the publication, but before pleading, 
 information was given to him which, if true, would have supported 
 an allegation in the plea, evidence having been given at the trial to 
 account for the non-production of proof, but no evidence in support of 
 the allegation itself, (s) 
 
 A libel imported to be founded on certain newspaper reports, and 
 upon the foundation of those reports charged certain troops with acts 
 of murder : after conviction the defendant offered affidavits that the 
 
 In) R. v. Duffv, 2 Cox, C. C. 45. (?) R. v. Labouchere, 14 Cox, C. C. 419. 
 
 (o) R. v. Newman, 1 E. & B. 268. (r) R. v. Newman, 1 E. & B. 558. 
 
 (p) R. v. Newman, 1 E. & B. 558. (s) Ibid.
 
 chap, xxviii.] Libel and Indictable Slander. 651 
 
 newspapers did contain those reports, and also other affidavits that 
 the facts were true. The former affidavits were received, because 
 they explained the situation in which the defendant stood at the time 
 he wrote the libel, and showed the impression under which he wrote ; 
 but the latter were rejected, because the receiving them might deprive 
 of a fair trial persons who might afterwards be tried for the murders , 
 and if murders were committed, the proper course was to prosecute 
 and bring to a fair trial, not to libel and create an unfair prejudice, (t) 
 
 Where an indictment for a libel on the governor of a parish work- 
 house was preferred by the direction and carried on at the expense of 
 the select vestry of the parish, and the defendant having removed it 
 into the King's Bench by certiorari was convicted, it was held that 
 the party libelled was not the ' party grieved.' within the- 5 & 6 Will. 
 & M. c. 11, s. 3, and, therefore, was not entitled to costs, (u) 
 
 Costs. — - When a prosecutor or defendant is entitled to costs under 
 6 & 7 Vict. c. 96, s. 8, see ante, p. 649. On a criminal information 
 for libel the defendant, if he obtain a verdict, is entitled to costs 
 under the 6 & 7 Vict. c. 96, s. 8, though he has not pleaded a special 
 plea under section 6 ; and the judge cannot deprive him of costs 
 by a certificate, the provision in the 4 & 5 Will. & M. c. 18, s. 2, on 
 this head being superseded by the later Act. (v) Upon the trial of 
 a criminal information for a defamatory libel the defendant obtained 
 a verdict, whereupon the Master on taxation allowed him the costs 
 which he had incurred in showing cause unsuccessfully against the 
 rule nisi for filing the information under the above section 8 : held 
 by Mellor, J., and Lush, J. (Blackburn, J., dub.), -that the allowance 
 was properly made, (w) The Court of Queen's Bench has no juris- 
 diction to direct the clerk of assize to review his taxation of costs 
 (under the 6 & 7 Vict. c. 96, s. 8) of an indictment for libel tried on 
 the Crown side under a commission of oyer and terminer. But, 
 perhaps, one of the commissioners under that commission might do 
 so, before that commission was superseded. (^) 
 
 The offence of libel is not triable at Quarter Session (5 & 6 Vict. c. 
 38, s. 1). 
 
 (t) R. v. Burdett, 4 B. & A. 314. M. C. 391. It was held on appeal that the 
 
 (u) E. v. Dewhurst, 5 B. & Ad. 405. See Court of Appeal had no jurisdiction, as this 
 
 R. v. Hawdon, 3 P. & D. 44. was a criminal case, 2 Q. B. D. 37. 
 
 [v) R. v. Latimer, 15 Q. B. 1077 ; 20 L. (x) R. v. Newhouse, 1 Bail. C. R. 129 ; 
 
 J. Q. B. 129. 22 L.J. Q. B. 127. 
 
 (w) R. v. Steel, 1 Q. B. D. 402 ; 45 L. J
 
 CHAPTER THE TWENTY-NINTH. 
 
 OF DISTURBANCES IN PLACES OF PUBLIC WORSHIP, (a) 
 
 It has been already stated that affrays in a church or churchyard 
 have always been esteemed very heinous offences, as being very great 
 indignities to the Divine Majesty, to whose worship and service such 
 places are immediately dedicated ; (6) and upon this consideration all 
 irreverent behaviour in these places has been esteemed criminal by 
 the makers of our laws. So that many disturbances occurring in these 
 places are visited with punishment which, if they happened else- 
 where, would not be punishable at all ; as bare quarrelsome words : 
 and some acts are criminal which would be commendable if done in 
 another place ; as arrests by virtue of legal process, (c) 
 
 Several statutes have been passed for the purpose of preventing 
 disturbances in places of worship belonging to the established church, 
 and also in those belonging to congregations of Protestant Dissent- 
 ers and Eoman Catholics. 
 
 By the 5 & 6 Edw. 6, c. 4, ' if any person whatsoever shall, by 
 words only, quarrel, chide, or brawl, in any church or churchyard, that 
 then it shall be lawful unto the ordinary of the place where the offence 
 shall be done, and proved by two lawful witnesses, to suspend every 
 person so offending; that is to say, if he be a layman, ah ingressu 
 ecclesice, and if he be a clerk, from the ministration of his office, for 
 so long time as the said ordinary shall by his discretion think meet 
 and convenient, according to the fault.' (d) 
 
 By sec. 2, ' if any person or persons shall smite or lay violent hands 
 upon any other, either in any church or churchyard, then ipso facto 
 every person so offending shall be deemed excommunicate, and be 
 excluded from the fellowship and company of Christ's congrega- 
 tion.'^) 
 
 In the construction of this statute it has been held that the Eccle- 
 siastical Court may proceed upon the two first sections, and is not 
 to be prohibited ; for though the offence mentioned in the second 
 section of smiting in the church or churchyard is still an offence at 
 
 (a) The statute 5 & 6 Edw. c. 1, s. 2, commenced after July 3, I860, against any 
 imposed a general duty on people to go to person not being in holy orders ; ' and by sec. 
 church, and conferred "a general right correl- 4, the 5 & 6 Edw. 6, c. 4, is repealed ' so far 
 atively to go to church, and these are still as relates to persons not in holy orders.' 
 landing on members of the Church of Eng- (r) The 9 Geo. 4, c. 31, repeals this Act 
 land. "Taylor v. Timson, 20 Q. B. D. 671. as far ' as relates to the punishment of per- 
 
 (b) Ante, p. 588. sons convicted of striking with any weapon, 
 
 (c) 1 Hawk. P. C. c. 63, s. 23. or drawing any weapon with intent to strike 
 
 (d) By the 23 & 24 Vict. c. 32, s. 1, 'it as therein mentioned.' The statute has three 
 shall not be lawful for any ecclesiastical court degrees of offences, per Lord Mansfield, C. J., 
 in England or Ireland to entertain or adjudi- 1 Burr. 242, and only the last, i. e., sec. 3, 
 cate upon any suit or cause of brawling seems to be repealed. C. S. G.
 
 chap, xxix.] Disturbances in Places of Public Worship. 653 
 
 common law, and the offender may be indicted for it, yet, besides this, 
 he may, by the act, be ipso facto excommunicated. (/) No previous 
 conviction is necessary in this case; though, if there be one, the 
 ordinary may use it as proof of the fact. But if the Ecclesiastical 
 Court proceeds for damages on either clause, the Court of King's 
 Bench will prohibit them ; for the proceedings of the Ecclesiastical 
 Court are pro salute animai. (</) 
 
 Cathedral churches, and the churchyards which belong to them, are 
 within the statute, (li) And it will be no excuse for a person who 
 strikes another in a church, &c, to show that the other assaulted 
 him. (i) But churchwardens, or perhaps private persons, who whip 
 boys for playing in the church, or pull off the hats of those who 
 obstinately refuse to take them off themselves, or gently lay their 
 hands on those who disturb the performance of any part of divine 
 service, and turn them out of the church, were never within the 
 meaning of the statute. (/) 
 
 By the 1 Mary, sess. 2, c. 3, s. 2, ' if any person or persons, of their 
 own power and authority, do and shall willingly and of purpose, by 
 open and overt word, fact, act, or deed, maliciously or contemptuously 
 molest, let, disturb, vex, or trouble, or by any other unlawful ways or 
 means disquiet or misuse, any preacher or preachers, licensed, allowed, 
 or authorized to preach by the Queen's Highness, or by any archbishop 
 or bishop of this realm, or by any other lawful ordinary, or by any of 
 the universities of Oxford and Cambridge, or otherwise lawfully 
 authorized or charged by reason of his or their cure, benefice, or other 
 spiritual promotion or charge, in any of his or their open sermon, 
 preaching, or collation, that he or they shall make, declare, preach, or 
 pronounce, in any church, chapel, churchyard, or in any other place 
 or places, used, frequented, or appointed, or that hereafter shall be 
 used or appointed to be preached in ; or if any person or persons shall 
 maliciously, willingly, or of purpose, molest, let, disturb, vex, disquiet, 
 or otherwise trouble, any parson, vicar, parish priest, or curate, or any 
 lawful priest, preparing, saying, doing, singing, ministering or cele- 
 brating the mass, or other such divine service, sacraments or sacra- 
 mentals, as was most commonly frequented and used in the last year 
 of the reign of the late sovereign lord King Henry the Eighth, or 
 that at any time hereafter shall be allowed, set forth, or authorized, 
 by the Queen's Majesty ; or, if any person or persons shall unlaw- 
 fully, contemptuously, or maliciously, of their own power or author- 
 ity, pull down, deface, spoil, or otherwise break, any altar or altars, 
 or any crucifix or cross, in any church, chapel, or churchyard,' every 
 such offender, his aidors, procurers, or abettors, may be apprehended 
 by any constable or churchwarden of the place where such offence 
 shall be committed, or by any other officer or person then being 
 present at the time of the said offence, and being so apprehended, 
 shall be brought before some justice of the peace, by whom he shall, 
 upon due accusation, be committed forthwith ; and within six days 
 next after the accusation the said justice, with one other justice, shall 
 
 (/) Wilson v. Greaves, 1 Burr. 240. (h) Dethick's case, 1 Leon. 248. 
 
 (fif) Id. ibid. And by Lord Mansfield, (i) 1 Hawk. P. C c. 63, s. 28. 
 
 C. J., in the same case, 'We proceed to (j) Id. ibid. sec. 29. See notes (a) and 
 
 punish, they to amend.' (e), p. 652.
 
 654 Disturbances in Places of Public Worship. [book ii. 
 
 diligently examine the offence ; and if the two justices find the person 
 guilty, by proof of two witnesses, or confession, they shall commit 
 him to gaol for three months, and further to the quarter sessions next 
 after the end of the three months ; at which sessions he is upon 
 repentance to be discharged, finding surety for his good behaviour for a 
 year ; and if he will not repent, he is to be further committed till he 
 does. ' (&) 
 
 The disturbance of a minister in saying the present common prayer 
 is within this statute ; for the express mention of such divine service 
 as should be afterwards authorized by Queen Mary impliedly includes 
 such service also as should be authorized by her successors, upon the 
 principle that as the King never dies, a prerogative given generally to 
 one goes of course to others. (/) 
 
 The 1 Mary, sess. 2, c. 3, merely gave to the common law cogni- 
 zance of an offence, which was before punishable by the ecclesiastical 
 law ; and in order to be within that statute, the party must mali- 
 ciously, wilfully, or of purpose, molest the person celebrating divine 
 service. The plaintiff on a Sunday presented a notice to the parish 
 clerk, and desired him to read it. The clerk, after consulting the 
 minister, refused to do so. After the Mcene Creed had been read, and 
 whilst the minister was walking from the communion table to the 
 vestry-room, and whilst no part of the service was actually going on, 
 the plaintiff stood up in his pew and read a notice that a vestry 
 would be held to choose churchwardens, whereupon the minister 
 desired a constable to take him out of the church, which the con- 
 stable did, and detained him an hour after the service was over, and 
 then allowed him to go upon promising to attend before a magistrate 
 the next day. It was held, that although the constable might be 
 justified in removing him from the church, and detaining him until 
 the service was over, he could not detain him afterwards to take him 
 before a magistrate under this statute. Abbot, C. J., 'said, 'had the 
 notice been read by the plaintiff whilst any part of the service was 
 actually going on, we might have thought that he had done it on pur- 
 pose to molest the minister ; but the act having been done during an 
 interval when no part of the service was in the course of being per- 
 formed, and the party apparently supposing that he had a right 
 to give such a notice, I am not prepared to say that the 1 Mary, 
 sess. 2, c. 3, warranted his detention in order that he might be taken 
 before a justice.' (on) 
 
 The statute further provides, that persons rescuing offenders so 
 apprehended as aforesaid, or hindering the arrest of offenders, shall 
 suffer like imprisonment, and pay a fine of five pounds for each 
 offence, (n) And if any offenders be not apprehended, but escape, the 
 escape is to be presented at the quarter sessions, and the inhabitants 
 of the parish where the escape was suffered are to forfeit five 
 pounds, (o) 
 
 Precedents are to be met with of indictments for breaking the 
 
 (k) 1 Mary, sess. 2, c. 3, ss. 2, 3, 4, 5, 6. It was also held that the case did not come 
 
 Qu., how far is this Act repealed by the within the 1 Will. & M. c. 18, post, p. 655. 
 1 Eliz. c. 2. (n ) Sec. 7. 
 
 {I) l'Hawk. P. C. c. 63, s. 31, Gibs. 372. (o) Sec. 8. 
 
 (m) Williams v. Glenister, 2 B. & C. 699.
 
 chap, xxix.] Disturbances in Places of Public Worship. 655 
 
 windows of a church, by firing a gun against them : (p) but it has 
 been doubted whether such an indictment is sustainable, as being for 
 a mere trespass, (q) 
 
 By the 24 & 25 Vict. c. 100, s. 36, 'Whosoever shall, by threats 
 or force, obstruct or prevent, or endeavour to obstruct or prevent, any 
 clergyman or other minister in or from celebrating divine service 
 or otherwise officiating in any church, chapel, meeting house, or other 
 place of divine worship, or in or from the performance of his duty in 
 the lawful burial of the dead in any churchyard or other burial place, 
 or shall strike or offer any violence to, or shall, upon any civil process, 
 or under the pretence of executing any civil process, arrest any clergy- 
 man or other minister who is engaged in, or to the knowledge of the 
 offender is about to engage in, any of the rites or duties in this section 
 aforesaid, or who to the knowledge of the offender shall be going to 
 perform the same or returning from the performance thereof, shall be 
 guilty of a misdemeanor, and being convicted thereof shall be liable, 
 at the discretion of the Court to be imprisoned for any term not 
 exceeding two years, with or without hard labour.'(r) 
 
 By the Burials Act, 1880 (43 & 44 Vict. c. 41), which provides for 
 burials without the rites of the Church of England, s. 7, 'All burials 
 under this Act, whether with or without a religious service, shall be 
 conducted in a decent and orderly manner, and every person guilty of 
 riotous, violent, or indecent behaviour at any burial under this Act, 
 or wilfully obstructing such burial or any such service as aforesaid 
 thereat, or who shall in any such churchyard or graveyard as afore- 
 said deliver any address not being part of or incidental to a religious 
 service permitted by this Act, and not otherwise permitted by any 
 lawful authority, or who shall, under colour of any religious service 
 or otherwise in any such churchyard or graveyard, wilfully endeavour 
 to bring into contempt or obloquy the Christian religion, or the belief 
 or worship of any church or denomination of Christians, or the mem- 
 bers or any minister of any such church or denomination, or any 
 other person, shall be guilty of a misdemeanor.' 
 
 By sec. 8, ' All powers and authorities now existing by law for the 
 preservation of order and for the prevention and punishment of dis- 
 orderly behaviour in any churchyard or graveyard may be exercised 
 in any case of burial under this Act in the same manner and by the 
 same persons as if the same had been a burial according to the rites 
 of the Church of England.' 
 
 The 1 Will. & M. c. 18, s. 18, which was passed for the purpose of 
 exempting Protestants dissenting from the Church of England from 
 the penalties of certain laws therein mentioned, enacts, 'that if any 
 
 (p) 2 Chit. Grim. L. 23. c. 23, ss. 7, 19. The amendments consist in 
 
 (q) Id. ibid., and see ante, p. 204. including ministers not of the Church of 
 
 (>•) This clause is new in England, except England and Ireland, and all places of divine 
 
 that part which applies to the arrest of any worship, and all burial places, and in adding 
 
 clergyman while performing divine service, the endeavour to prevent or obstruct, the 
 
 or going to perform the same, or returning offering any violence to, and the arrest under 
 
 from the performance thereof, which was pretence of executing any civil process of, 
 
 contained in both the 9 Geo. 4, c. 31, s. 23, any clergyman or minister engaged in or 
 
 and 10 Geo. 4, c. 34, s. 27 (I.). The rest of about to engage in any of the rites or duties 
 
 the clause is framed on the Irish Acts of the mentioned in this clause. As to hard labour, 
 
 27 Geo. 3, c. 15, s. 5 ; 40 Geo. 3, c. 96, s. 5 ; &c, see ante, pp. 80, 81. 
 5 Geo. 4, c. 25, s. 5 ; and 5 Vict. sess. 2,
 
 656 Disturbances in Places of Pullic Worship, [book ii. 
 
 person or persons shall, willingly and of purpose, maliciously or con- 
 temptuously, come into any cathedral or parish church, chapel, or 
 other congregation permitted by this Act, and disquiet or disturb the 
 the same, or misuse any preacher or teacher ; such person or persons, 
 upon proof thereof before any justice of peace, by two or more suf- 
 ficient witnesses, shall find two sureties to be bound by recognizance 
 in the penal sum of fifty pounds ; and in default of such sureties 
 shall be committed to prison, there to remain till the next general or 
 quarter sessions ; and upon conviction of the said offence at the said 
 general or quarter sessions, shall suffer the pain and penalty of twenty 
 pounds, to the use of the King.' (s) 
 
 Before this statute the Court of King's Bench refused to grant a 
 certiorari to remove an indictment at the sessions against a person 
 not behaving himself modestly and reverently at the church during 
 divine service ; for, although the offence was punishable by ecclesias- 
 tical censures, the Court considered it properly to come within the 
 cognizances of the justices of the peace, (t) An indictment upon the 
 statute, found at the quarter sessions, may be removed by certiorari 
 before verdict, notwithstanding the words of the statute, which seem 
 at the first view to confine the cognizance of the offence to the 
 justices in the first instance, and in the next to the quarter sessions, (u) 
 
 The oaths taken by a preacher under this Act are matter of record, 
 and cannot be proved by parol evidence ; but it is not necessary, upon 
 an indictment for disturbing a dissenting congregation, to prove that 
 the minister has taken the oaths, (v) It is no defence to such an 
 indictment that the defendant committed the outrage for the purpose 
 of asserting his right to the situation of clerk, (w) And it has been 
 held that a congregation of foreign Lutherans, conducting the service 
 of their chapel in the German language, are within the protection of 
 the statute, (x) Upon the conviction of several defendants, each of 
 them is liable to a penalty of twenty pounds, (y) 
 
 The 1 Will. & M. c. 18, only applies where the thing is done wilfully, 
 and of purpose to disturb the congregation or misuse the minister, (z) 
 
 By the 52 Geo. 3, c. 155, s. 12, ' If any person or persons do and shall 
 wilfully and maliciously or contemptuously disquiet or disturb any 
 meeting, assembly, or congregation of persons assembled for religious 
 worship, permitted or authorized by this Act, or any former Act or 
 Acts of Parliament, or shall in any way disturb, molest, or misuse any 
 preacher, teacher, or person officiating at such meeting, assembly, or 
 congregation, or any person or persons there assembled ; such person 
 or persons so offending, upon proof thereof before any justice of the 
 peace by two or more credible witnesses, shall find two sureties to be 
 bound by recognizances in the penal sum of fifty pounds to answer for 
 such offence ; and in default of such sureties shall be committed to 
 prison, there to remain till the next general or quarter sessions ; and 
 upon conviction of the said offence at the said general or quarter ses- 
 
 (s) This Act is repealed, see 34 & 35 Vict. (v) R. v. Hube, Peake, R. 131. 
 
 c. 48, schedule 1, p. 2, except ss. 7, 18, and (iv) Id. ibid, 
 
 part of s. 11. (x) Id. ibid. 
 
 (I) R. v . , i Keb. 491. Burn's (y) R. v. Hube, 5 T. R. 542. 
 
 Just. tit. Public Worship. (z) Per Abbott, C. J. "Williams v. Glen- 
 
 (u) R. v. Hube, 5 T. R. 542. ister, ante, p. 654.
 
 chap, xxix.] Disturbances in Places of Public Worship. 657 
 
 sions shall suffer the pain and penalty of forty pounds.' By sec. 14 
 nothing contained in the Act shall extend to Quakers, nor to any 
 meetings or assemblies for religious worship held or convened by 
 them. 
 
 It has been holden upon this statute, in conformity to the decision 
 which has been mentioned upon the 1 Will. &M. c. 18, (a) that an 
 indictment found at the quarter sessions may be removed into the 
 Court of King's Bench by certiorari before trial, (b) and may be tried 
 at the assizes. 
 
 A similar provision to that contained in the 1 Will. & M. c. 18, 
 s. 18, (c) relating to Protestant dissenters, is enacted in the 31 Geo. 3, 
 c. 32, s. 10, with respect to Eoman Catholic congregations, or assem- 
 blies of religious worship permitted by the latter statute. 
 
 The 18 & 19 Vict. c. 86, recites the 1 Will. & M. sess. 1, c. 18, and 
 52 Geo. 3, c. 155, and enacts that nothing contained in these Acts or 
 in the 15 & 16 Vict. c. 36, shall apply, (1), to any congregation or 
 assembly for religious worship held in any parish or ecclesiastical dis- 
 trict, and conducted by the incumbent, or in case the incumbent is 
 not resident, by the curate of such parish or district, or by any person 
 authorized by them respectively ; (2), to any congregation or assembly 
 for religious worship meeting in a private dwelling-house or on the 
 premises belonging thereto ; (3), to any congregation or assembly for 
 religious worship meeting occasionally in any building or buildings 
 not usually appropriated to purposes of religious worship. And no 
 person permitting any such congregation to meet as herein-mentioned 
 in any place occupied by him shall be liable to any penalty for so 
 doing, (d) 
 
 The 23 & 24 Vict. c. 32, s. 2, renders liable to summary conviction 
 any person guilty of riotous, violent or indecent behaviour in any 
 church or chapel of the Church of England and Ireland, or in any 
 chapel of any religious denomination, 1 or in any place of religious 
 
 («) R. v. Hube, supra. is to be read as applicable to the laws to which 
 
 (b) R. v. Wadley, 4 M. & S. 508. Protestant dissenters are subject after the 
 
 (c) Ante, p. 655. passing of this Act. See the 18 & 19 Vict. 
 
 (d) By sec. 2, so much of the 2 & 3 Will. c. 81, as to registering places of religious 
 4, c. 115, as relates to Roman Catholics, and worship. 
 
 of the 9 & 10 Vict. c. 59, as relates to Jews, 
 
 xVmerican Note. 
 
 1 Such statutes as the above are not re- camp-ground at night after the services 
 
 quired in America, where all forms of were over, and the worshippers were retired 
 
 religious worship are equally favoured. to rest. C. v. Jennings, 3 Grat. 624 ; though 
 
 Bishop i. s. 542. But on the other hand there a contrary decision seems to have been 
 
 have been many statutes passed in America come to in Missouri. S. v. Edwards, 32 
 
 for the purpose of protecting all sorts of Mo. 548 ; S. v. Jones, 53 Mo. 486. The 
 
 meetings. Thus in Massachusetts a statute law in Texas and Alabama seems to agree 
 
 protects 'any school or other assembly of witli that in Virginia, but Tennessee follows 
 
 people met for a lawful purpose within the Missouri. There have been various deci- 
 
 place of such meeting or out of it,' and this sions on the words 'religious worship' and 
 
 was held applicable to a temperance meeting. ' schools.' The question^ What is a disturb- 
 
 C. v. Porter, 1 Gray, 476. In Virginia any ance ? appears to be a question for the jury, 
 
 person maliciously or contemptuously dis- C. v. Porter, 1 Gray, 476, and must vary 
 
 turbing any congregation assembled in any according to the nature of the meeting ami 
 
 church, meeting-house, or other place of the usual conduct of such persons as attend 
 
 religious worship, is liable to be punished, it. See Bishop ii. ss. 308, 309, 310. In 
 
 and this was held to protect a Methodist most statutes the word ' wilfully' is used. 
 vol. i. — 42
 
 658 Disturbances in Places of Public Wo/ship. [book ii. 
 
 worship certified under the 18 & 19 Vict. c. 81, whether during the 
 celebration of divine service or at any other time, or in any church- 
 yard or burial ground, or who molests, disturbs, &c, any preacher or 
 clergyman as therein mentioned, (e) 
 
 The facts attending disturbances of religious assemblies may some- 
 times authorise proceedings at common law for a conspiracy or a 
 riot: (/) and we have seen that by the 24 & 25 Vict. c. 97, s. 11, if 
 persons riotously assembled begin to demolish or pull down any church 
 or chapel, or any chapel for the religious worship of persons dissent- 
 ing from the worship of the United Church of England and Ireland, 
 they will be guilty of felony, (g) 
 
 (e) And the section applies even al- (/) See Preced. 2 Chit. dim. L. 29. 
 
 though the violent behaviour took place in (jr) Ante, p. 565. 
 
 asserting a bona fide claim of right. Asher v. 
 Calcraft, 18 Q. B. D. 607.
 
 CHAPTER THE THIRTIETH. 
 
 OF BIGAMY. 1 
 
 The offence of having a plurality of wives at the same time is more 
 correctly denominated polygamy ; but, the name bigamy having 
 been more frequently given to it in legal proceedings, it may perhaps 
 be a means of more ready reference to treat of the offence under the 
 latter title, (a) Originally this offence was considered of ecclesiastical 
 cognizance only ; and though the 4 Edw. 1, stat. 3, c. 5, treated it as a 
 capital crime, it appears still to have been left of doubtful temporal 
 cognizance, until the 1 Jac. 1, c. 11, declared that such offence should 
 be felony. 
 
 The provisions of this statute were in several respects defective. A 
 person whose consort had been abroad for seven years, though known 
 to be living, might have married again with impunity. And so might 
 a person who was only divorced a mensd et thoro. The 9 Geo. 4, c. 31, 
 therefore repealed the statute of James, and that Act is repealed by the 
 24 & 25 Vict. c. 95. 
 
 By the 24 & 25 Vict. c. 100, s. 57, ' Whosoever, being married, shall 
 marry any other person during the life of the former husband or wife, 
 whether the second marriage shall have taken place in England or 
 Ireland or elsewhere, (&) shall be guilty of felony, and being convicted 
 thereof shall be liable, at the discretion of the Court, to be kept in 
 penal servitude for any term not exceeding seven years and not less 
 than three years, — or to be imprisoned for any term not exceed- 
 ing two years, with or without hard labour, and any such offence 
 may be dealt with, inquired of, tried, determined, and punished in any 
 county or place in England or Ireland where the offender shall be 
 apprehended or be in custody, in the same manner in all respects as if 
 the offence had been actually committed in that county or place. 
 Provided that nothing in this section contained shall extend to any 
 
 (a) Bigamy, in its proper signification, marrying a widow. 4 Black. Com. 163, 
 
 is said to mean only being twice married, note (b). And see Bac. Abr. tit. Bigamy, 
 
 and not having a plurality of wives at once, in the notes. 
 
 According to the canonists, bigamy con- (b) See 1 Hale, 692, 693 ; 1 East, P. C. 
 
 sisted in marrying two virgins successively c. 12, s. 2, p. 465 ; R. v. Topping, Dears, 
 
 one after the death of the other ; or in once C. C. 647. 
 
 American Note. 
 
 1 See Gahajas v. P., 1 Parker, C. R. 378 ; S., 40 Geo. 244 ; Bord v. S., 21 Gratt. 800 ; 
 
 Hayes v. P., 25 N. Y. 390. As to proving S. v. Sears, 16 Ind. 352 ; P. v. Lambert, 5 
 
 first marriage see S. v. Hilton, 3 Rich, Mich. 349. The criminality of bigamy in 
 
 434 ; Carmichael v. S., 12 Ohio (N. S.), America rests entirely on statute. See 
 
 553 ; Langtry v. S., 20 Ala. 536 ; King v. Bishop i. § 502.
 
 660 Exceptions in the Statute. [book ii. 
 
 second marriage contracted elsewhere than in England and Ireland 
 by any other than a subject of her Majesty, or to any person marrying 
 a second time whose husband or wife shall have been continually 
 absent from such person for the space of seven years then last past, 
 and shall not have been known by such persons to be living within 
 that time, or shall extend to any person who, at the time of such 
 second marriage, shall have been divorced from the bond of the 
 first marriage, or to any person whose former marriage shall have 
 been declared void by the sentence of any Court of competent 
 jurisdiction.' (c) 
 
 The proviso in this statute contains exceptions in respect of four 
 cases, in which a second marriage is no felony within the statute. 
 
 The first exception is that the statute shall not extend ' to any 
 second marriage contracted elsewhere than in England and Ireland 
 by any other than a subject of her Majesty.' 
 
 The second exception is that it shall not extend to ' any person mar- 
 rying a second time, whose husband or wife shall have been continually 
 absent from such person for the space of seven years then last past, 
 and shall not have been known by such person to be living within 
 that time.' (V?) 
 
 Where there has been such absence, the burden of proof is not upon 
 the prisoner to show that it was not known to him or her that the 
 wife or husband was living within such time. On an indictment for 
 bigamy, it was proved that the prisoner and his wife had lived apart 
 for seven years, and that the prisoner then married again. There was 
 no evidence of the prisoner's knowledge of the existence of his first 
 wife at the time he married again. The prisoner was convicted. Held, 
 that the burden of proof that the prisoner did not know that his wife 
 was alive at the time he contracted the second marriage was not on 
 the prisoner, and that the conviction could not be sustained, (e) 
 
 But where there was no evidence of any separation or of the date 
 when the prisoner last saw his wife, it was held that the presumption 
 was that the first wife was living at the time of the second marriage, 
 although it took place seventeen years after the first marriage. (/) 
 
 There has been some doubt as to whether if the prisoner had at the 
 time of the second marriage a reasonable and honest belief that his 
 wife was dead (although she had not been absent for seven years) he 
 could be convicted ; but it has now been decided by the full Court 
 that a bond fide belief upon reasonable grounds in her death at the 
 time of the second marriage, is a good defence to the indictment. (#) 
 
 The prisoner was convicted of bigamy. The first marriage was with 
 Victor, in the year 1836. The second marriage was with Lumley, on 
 the 9th of July, 1847. The prisoner lived with Victor till the middle 
 of 1843, when they separated, and from that time no more had been 
 
 (c) This clause is taken from the 9 Geo. L. R. 1 C. C. R. 1. See R. v. Heaton, 3 F. 
 4, c. 31, s. 22, and 10 Geo. 4, c. 34, s. 26 & F. 819. 
 
 (I). ( f) R. v. Jones, 15 Cox C. C. 284. 
 
 (d) See 1 Hale, 693; 3 Inst. 88; 4 (g) R. v. Tolson, 23 Q. B. D. 168, per 
 Black. Com. 164 ; 1 East, P. C. c. 12, s. 3, Lord Coleridge, C. J., Hawkins, Stephen, 
 p. 466 ; R. v. Cullen, 9 C. & P. 681 ; R. Cave, Day, A. L. Smith, Wills, Grantham 
 v. Jones, C. & M. 614 ; R. v. Briggs, Dears, and Charles, JJ. (Denman, Field, Manisty, 
 & B. C. C. 98 ; 26 L. J. M. C. 7. JJ., and Pollock and Huddleston, BB., dis- 
 
 (e) R. v. Curgenven, 35 L. J. M. C. 58; senting).
 
 chap, xxx.] Of Bigamy. 661 
 
 heard of him. There was no evidence as to his age. The judge at the 
 trial directed the jury that it was a presumption of law that Victor 
 was alive at the time of the second marriage. Held, that there was 
 no presumption of law that life continued for seven years, or for any 
 other period after the time of the latest proof of the life of the party, 
 and that it was a question of fact for the jury, under the circumstances 
 of each case, whether a person be alive or dead at any time within the 
 interval of seven years, at the termination of which the protection 
 afforded by statute in cases of bigamy comes into operation, and 
 the conviction was quashed, (h) 
 
 If a man marries again after his wife has been absent for seven 
 years and shall not have been known by him to be living within that 
 time during her life, the second marriage is null and void. (i~) 
 
 In 1804 the prisoner married Ellen Earle, and while she was still 
 alive he, in April, 1868, married Ada Leslie. He was convicted of 
 bigamy for this, and in 1879, he married Charlotte Lavers, and while 
 she was still alive he, in September, 1880, married Edith Miller. 
 For this last marriage he was again indicted for bigamy, the indict- 
 ment charging that " his wife Charlotte " was then alive. There was 
 no evidence that Ellen Earle was alive at the date of the prisoner's 
 marriage to Charlotte Lavers, — which would have made that mar- 
 riage invalid, — and the judge held that under the circumstances the 
 burden of proving that Ellen Earle was alive at that date lay on the 
 prisoner. He was convicted, but the Court quashed the conviction 
 on the ground that it was a question for the jury whether upon 
 the facts proved Ellen Earle was alive at the date of the prisoner's 
 marriage to Charlotte Lavers. (j) If Ellen Earle was alive at the 
 date of the prisoner's marriage to Charlotte Lavers that marriage 
 was void, although under the proviso of the statute the prisoner 
 could not be convicted of bigamy for contracting it ; and that mar- 
 riage being void, the subsequent marriage with Edith Miller would 
 not be bigamous, unless the prisoner could be shown to have known 
 of Ellen Earle's having been alive within the seven years, and even 
 
 (h) R. v. Lumley, 38 L. J. M. C. 86, 2 A. & E. 540 ; and Doe d. Xepean v. 
 L. R. 1 C. C. R. 196, et per cur. In an Knight, 2 B. & A. 386, appear to estab- 
 indictment for bigamy it is incumbent on lish this proposition. Where the only evi- 
 the prosecutor to prove to the satisfaction dence is that the party was living at a 
 of the jury that the husband or wife, as the period which is more than seven years prior 
 case may be, was alive at the date of the to the second marriage, there is no question 
 second marriage, and that is purely a ques- for the jury. The proviso in the Act then 
 tion of fact. The existence of the party at comes into operation, and exonerates the 
 an antecedent period may or may not afford prisoner from criminal culpability, though 
 a reasonable inference that he was living at the first husband or wife be proved to have 
 the subsequent date. If, for example, it been living at the time when the second mar- 
 were proved that he was in good health on riage was contracted. The Legislature by this 
 the day preceding the second marriage, the proviso sanctions a presumption that a person 
 inference would be strong, almost irresist- who has not been heard of for seven years 
 ible, that he was living on the latter day, is dead ; but the proviso affords no ground 
 and the jury would in all probability find for the converse proposition, viz. that when 
 that he was so. If, on the other hand, it a party has been seen or heard of within 
 were proved that he was then in a dying seven years a presumption arises that he is 
 condition and nothing further was proved, still living. That is always a question of 
 they would probably decline to draw that fact. See Murray v. R., 7 Q. B. 700; R. v. 
 inference. Thus the question is entirely Apley, 1 Cox, C. C. 71. 
 for the jury. The law makes no presump- (/) 4 B. C. Com. 164, notf (~). 
 tion either way. The cases cited of R. v. (j) R. v. Wiltshire, 6 Q. B. D. 366. 
 Twyning, 2 M. & W. 894 ; R. v. Harbome,
 
 662 Exceptions in the Statute. [book ii. 
 
 in that case he could not have been convicted on the indictment 
 as it stood. 
 
 The third exception provides that the Act shall not extend ' to any 
 person who at the time of such second ^marriage shall have been 
 divorced from the bond of the first marriage.' A divorce, therefore, a 
 mensd et thoro, which was held sufficient under the 1 Jac. 1, (/.) is 
 now no longer an exception. Nor would a judicial separation under 
 the 20 & 21 Vict. c. 85, s. 16, suffice, for it is to have the effect of a 
 divorce a mensd et thoro. (/) It was held under the 1 Jac. 1, that if 
 there be a divorce a vinculo matrimonii, and an appeal by one of the 
 parties, though this suspends the sentence, and may possibly repeal it, 
 yet a marriage pending that appeal will be aided by the exception, (m) 
 In a case upon the 1 Jac. 1, the question arose whether a divorce by 
 the Commissary or Consistorial Court of Scotland would operate so as 
 to excuse a person, who, having been married in England, had been 
 divorced by that Court, and had then married again in England, from 
 the penalties of bigamy. And, from the decision of the judges, it 
 appears, that, if the first marriage has taken place in England, it will 
 not be a defence to prove a divorce a vinculo matrimonii before the 
 second marriage, if such divorce were out of England ; unless the 
 divorce were upon a ground, which, by the law of England, would 
 warrant such a divorce : the divorces and sentences referred to in the 
 third section of the 1 Jac. 1, being divorces and sentences of the 
 ecclesiastical courts within the limits to which that statute applies. 
 The prisoner was indicted for bigamy ; both his marriages were in 
 England ; but before his second marriage his wife had obtained a 
 divorce a vinculo from him in the Commissary Court of Scotland. It 
 appeared that he took his wife into Scotland, that she might be 
 induced to institute a suit against him there ; and that he cohabited 
 with a prostitute there, for the very purpose of irritating his wife, and 
 furnishing ground for the divorce. A case being reserved and argued, 
 the judges were unanimous, that no sentence or act of any foreign 
 country or state could dissolve an English marriage a vinculo for 
 grounds on which it was not liable to be dissolved a vinculo in Eng- 
 land ; and that no divorce of an ecclesiastical court was within the 
 exception in the third section of the statute, unless it was the divorce 
 of a Court within the limits to which that statute extended, (ii) The 
 judges gave no opinion upon the husband's conduct, in drawing on 
 
 (/.•) 1 Hale, 694. 3 Inst. 89. 1 Hawk, whether this case be any authority upon the 
 
 P. C. c. 42, s. 5. 4 Black. Com. 164. Mid- present Act. The words of the' 1 Jac. 1, 
 
 dleton's case, Old Bailey, 14 Car., 2 Kel. 27. c. 11, were 'divorced by any sentence in the 
 
 And see 1 East, P. C. c. 12, s. 5, p. 467. Ecclesiastical Court.' The words in the 24 
 
 (/) See sec. 27 of the Act for the cases & 25 Vict. c. 100, s. 57, are, 'divorced from 
 
 in which a marriage may be dissolved. the bond of the first marriage.' These 
 
 (???) 3 Inst. 89. 1 Hale, 694, citing Co. words are so much more general, that it 
 
 P. C. c. 27, p. 89, and stating further that may be contended that they except every 
 
 if the sentence of divorce Vic repealed, a case where according to the laws of the 
 
 marriage afterwards is not aided by the ex- country where the divorce takes place, there 
 
 ception, though there was once a divorce. is a legal divorce a vinculo matrimonii, and 
 
 A marriage within the time allowed for an the words 'any court of competent juris- 
 
 appeal, under the 20 & 21 Vict. c. 85, s. [<6, diction ' in the next clause, instead of the 
 
 would be void. See Chichester r. Mure, 32 words 'the Ecclesiastical Court,' in the 
 
 !;. J. P. & M. 146. 1 Jac. 1, c. 11, seem to favour this view of 
 
 (n) It seems to admit of some doubt the exception. C. S. G.
 
 chap, xxx.] Of Bigamy. 663 
 
 his wife to sue for the divorce, because the jury had not found 
 fraud. (ji) 
 
 This case has been much commented upon in a decision of the 
 House of Lords, (p~) in which it was held that the English courts will 
 recognize as valid the decision of a competent Christian tribunal, dis- 
 solving the marriage between a domiciled native in the country where 
 such tribunal has jurisdiction, and an English woman, when the decree 
 of divorce is not impeached by any species of collusion or fraud, and 
 this although the marriage may have been solemnized in England, and 
 may have been dissolved for a cause which would not have been suffi- 
 cient to obtain a divorce in England. 
 
 The fourth exception is that the Act shall not extend ' to any person 
 whose former marriage shall have been declared vpid__by_the_ sentence, 
 of any Court of competent jurisdiction.' It was resolved, upon the 
 1 Jac. 1, by all the judges, that a sentence of the spiritual court 
 against a marriage, in a suit of ja ctitation o f marriage, is not conclu- 
 sive evidence, so as to stop the counsel for the crown from proving the 
 marriage ; the sentence having decided on the invalidity of the mar- 
 riage only collaterally, and not directly. And further, admitting such 
 sentence to be conclusive, yet that the counsel for the crown may 
 avoid the effect of such sentence, by proving it to have been obtained 
 by fraud or collusion, (q) There is no exception in the Act where 
 marriages are within the age of consent, (r) 
 
 With respect to the first marriage, the validity of it must be proved. 
 and with respect to the second marriage, it must be shown that a form 
 of marriage known to and recognized by the law as capable of produc- 
 ing a valid marriage has been gone through, (s) What constitutes 
 validity in the one case and a lawful form of marriage in the other, 
 has been the subject of a great number of statutes and decisions, which 
 will be found in the following pages, but it is proposed to consider in 
 the first place the above important distinction with respect to the two, 
 marriages. The words of the statute are, ' whosoever being married 
 shall marry any other person,' and it was thought that the same word 
 being used with respect to both marriages, if the first must be a valid 
 marriage, the second must also (but for the fact of the first marriage) 
 be a valid marriage, (t) But it has now been decided that the words 
 should be read as though they were, ' whosoever being married shall 
 go through the form and ceremony of marriage,' and that the form and 
 ceremony gone through must be such a one as is known to and recog- 
 nized by the law as capable of producing a valid marriage, and that 
 such a circumstance as that the parties are within the forbidden degree 
 of consanguinity will not prevent the marriage from being bigamous. 
 Where a married woman married her deceased s ister' s husband, (%) it 
 
 (o) R. v. Lolley, SIS. Bayley, J., and by James Fergusson, Esq., Advocate, one 
 
 R. & R. 237. This case is referred to by of the Judges. 
 
 the Lord Chancellor, and also by Mr. (/>) Harvey v. Farnie, 8 Ap. Cas. 43. 
 
 Brougham, in Tovey v. Lindsay, 1 Dow's (q) Duchess of Kingston's case, Dom. 
 
 Rep. 117. And see 5 Ev. Coll. Stat. 348, Proc. 16 Geo. 3. 11 St. Tri. 262. 1 Leach, 
 
 note (4). Upon the important subject of 146. 1 Hawk. P. C. c. 42, s. 11. 
 the dissolution of marriages, celebrated (?•) See R. v. Birmingham, 8 B. & C. 29, 
 
 under the English law, by the Consistorial post, p. 693. 
 Court of Scotland, see a publication of (.s) R. v. Allen, post, p. 664. 
 
 Reports of some Decisions of that Court, (/!) R. v. Fanning, 10 Cox, C. C. 411. 
 
 (u) Cited infra.
 
 6(34 Trial, Etc. [book ii. 
 
 was held that although such second marriage was void under the 5 & 
 6 Will. 4, c. 52, s. 2, yet she had committed the crime of bigamy, (v) 
 A Protestant went through the form of marriage by a Komish priest 
 with a lioman Catholic. This marriage was void under the 19 Geo. 
 2, c. 13, and it was held by the Court of Criminal Appeal in Ireland 
 that such marriage being void could not be bigamous, although the 
 first wife was alive, (w) But this decision was overruled in the follow- 
 ing case. The prisoner's first wife being dead, he married again, and 
 subsequently went through the form of marriage with his first wife's 
 niece. The marriage was held to be void, but it was also held that 
 the prisoner was rightly convicted of bigamy. (#) 
 
 Where in order to establish a charge of bigamy in a divorce suit it 
 was proved that the husband married a woman in Australia according 
 to the forms of the Kirk of Scotland, but there was no proof that such 
 forms were recognized as legal by the laws of the colony, it was held 
 that the bigamy was not established, {y) 
 
 Principals in the second degree and accessories before the fact are 
 punishable in the same manner as principals in the first degree ; and 
 accessories after the fact are liable to be imprisoned for any term not 
 exceeding two years, with or without hard labour, (z) 
 
 Where an indictment charged a woman with bigamy, and the man, 
 with whom she contracted the second marriage, with inciting and 
 counselling the woman to commit the offence of bigamy, it was held 
 that if the man knew at the time of the marriage that she was a 
 married woman, and her husband alive, he might be convicted of 
 counselling her to commit the crime of bigamy, (a) 
 
 The indictment in the preceding case did not contain any count 
 charging the man as principal in the second degree ; but there is no 
 doubt, where a man marries a woman, knowing such woman to have 
 a husband alive at the time of such marriage, that he is a principal in 
 the second degree, as he is present and aids and assists the woman in 
 committing the felony, (b) 
 
 The 24 & 25 Vict. c. 100, s. 57, provides that the offender may be 
 
 tv) B v. Brawn, 1 C. & K. 144, per the purpose of a pretended and fictitious 
 
 Lord Denman C J — marriage, the case is not the less within the 
 
 (w) R. v. Fanning, 5 Car. & P. 412. statute by reason of any special circumstan- 
 
 (x) R v Allen L R 1 C. C. R. 367 ; ces, which independently of the bigamous 
 
 41 L J M. C 97, ct per cur. :— 'In thus character of the marriage, may constitute a 
 
 holding, it is not at all necessary to say that legal disability in the particular parties, or 
 
 forms of marriage unknown to the law, as make the form of marriage resorted to spe- 
 
 was the case in Burt v. Burt, would suffice cially inapplicable to their individual case 
 
 to bring a case within the operation of the (?/) Burt v. Burt, 29 L. J. V. & M. 166, 
 
 statute. We must not be understood to and this decision was upheld m K. w. Allen, 
 
 mean that every fantastic form of marriage mpra. It has been held by a majority ot 
 
 to which parties might think proper to the Court in Ireland that where the first 
 
 resort, or that a marriage ceremonv per- marriage is shown to have been contracted 
 
 formed bv an unauthorised person, or in an in a foreign state according to the laws ot 
 
 unauthorised place, would be a "marrying" the Roman Catholic Church it will be pre- 
 
 within the meaning of the 57th section of snmed to be valid without proof ol the law 
 
 the 24 & 25 Vict. It will be time enough of that state relating to marriage. R. v. 
 
 to deal with a case, of this description when Griffin, 14 Cox, C. C. 308. 
 
 it arises. It is sufficient for the present (z) 24 & 25 Vict. c. 100. s. 67. 
 
 purpose to hold, as we do, that where a (a) R. v. Brawn, 1 C. & K. 144. Lord 
 
 person already bound by an existing mar- Denman, C. J. 
 
 riage goes through a form of marriage (b) I know such to have been the opinion 
 
 known to and recognised by the law as of Lord Denman, C. J., and Alderson, B., 
 
 capable of producing a valid marriage, for in R. v. Brawn. C. S. G.
 
 ciiap. xxx.] Of Bigamy. 665 
 
 tried in the county where he shall be ' apprehended (c) or be in 
 custody.' But the provision of the statute is only cumulative, and 
 the party may be indicted where the second marriage was, though he 
 be never apprehended, and so may be outlawed ; for in general where 
 a statute creating a new felony directs that the offender may be tried 
 in the county in which he is apprehended, but contains no negative 
 words, he may be tried in that county in which the offence was 
 committed, (d) 
 
 Where the indictment is preferred in a county not where the second 
 marriage was, but where the prisoner was apprehended or in custody, 
 it need not state that fact ; for it will appear by the caption that he 
 was in custody of the sheriff of the county in which the indictment 
 was found, (e) 
 
 A first marriage tie facto, subsisting in fact at the time of the second 
 marriage, was sufficient to bring a case within the 1 Jac. 1, though 
 such first marriage were voidable by reason of consanguinity, affinity, 
 or the like ; for it was a marriage in judgment of law until it was 
 avoided. (/) And now by the 5 & 6 Will. 4, c. 54. s. 1, all marriages, 
 celebrated before the 31st of August, 1835, between persons being 
 within the prohibited degrees of affinity, shall not be annulled for 
 that cause by any sentence of the ecclesiastical court, unless pro- 
 nounced in a suit depending on the 31st of August, 1835, provided 
 that nothing hereinbefore contained shall affect marriages between 
 persons being within the prohibited degrees of consanguinity ; and by 
 sec. 2, ' all marriages celebrated after the said 31st of August, between 
 persons within the prohibited degrees of consanguinity or affinity shall 
 be absolutely null and void to all intents and purposes whatsoever.' 
 Where, therefore, a marriage now takes place within the prohibited 
 degrees of consanguinity or affinity, as such marriage is wholly void, 
 a second marriage will not amount to the crime of bigamy. Where, 
 therefore, on an indictment for bigamy, it appeared that the prisoner 
 had married two sisters, one after the death of the other, and the 
 latter marriage was alleged in the indictment as the legal marriage, it 
 was held that he was entitled to be acquitted, as that marriage was 
 null and void to all intents and purposes. (g~) This statute extends to 
 the illegitimate as well as the legitimate child of a late wife's parents. 
 Therefore a marriage with the illegitimate sister of a deceased wife is 
 void. (Ji) So a marriage of a man with the daughter of the illegitimate 
 
 (c) R. v. Gordon, R. & R. 48. Lord R. & M. 298. Where an indictment for 
 Digby's case, Hutt, 131. bigamy alleged that the prisoner was ap- 
 
 (d) 1 Hale, 694. 3 Inst. 87. Starkie, prehended in Gloucestershire, and this was 
 11. not pi'oved ; Channell, B., allowed the 
 
 (e) R. v. Whiley, rightly reported 1 C. indictment to lie amended by stating that 
 & K. 150, erroneously reported 2 M. C. C. R. he was in custody in that county. R. v. 
 186 ; R. v. Smythies, 1 Den. C.C. R. 498 ; 2 Smith, 1 F. & F. 36. 
 
 0. & K. 878. In R. v. Fraser, R. & M. C. C. (/) 3 Inst. 88. 
 
 R. 407, the first marriage was laid in Kent, (g) R. v. ChacLwick, 11 Q. B. 173. 
 
 the second in Surrey, the venue was Mid- (h) R. v. St. Giles in the Fields, 11 Q. B. 
 
 dlesex, and it was alleged that the prisoner 173. Where a woman proved that she had 
 
 was apprehended without stating any place, a sister seven years older than herself, and 
 
 and the conviction held bad, but no sug- that they were brought up together with 
 
 gestion was made that the defect was cured their parents, and that she always believed 
 
 by the caption; this case, therefore, may that they were sisters, Erie, J., held this 
 
 now be considered no authority. See R. v. was sufficient evidence to prove that they 
 
 O'Connor, 5 Q. B. 34. See R. v. Treharne, were sisters. And the witness having also
 
 6G6 Marriage Acts. [book ii. 
 
 half-sister of his deceased wife is void, (i) And the Act extends to 
 the marriages of British subjects abroad. Where, therefore, Mr. Brook 
 was duly married, according to the laws of Denmark, near Altona in 
 Denmark, to the lawful sister of his deceased wife, and he and his 
 second wife were then domiciled in England, and had merely gone 
 over to Denmark on a temporary visit ; it was held that this marriage, 
 though valid in Denmark, was absolutely void in England. (J) But it 
 has been ruled that though a lawful canonical marriage need not be 
 proved, yet a marriage in fact (whether regular or not) must be 
 shown; (Jc) which it seems must be understood where there is prima 
 facie evidence of a lawful marriage. (I) Where the first marriage, 
 which was with a Roman Catholic woman, was by a Romish priest in 
 England, not according to the ritual of the Church of England, and 
 the ceremony was performed in Latin, which the witnesses did not 
 understand, and could not therefore swear that the ceremony of mar- 
 riage according to the Church of Rome was read ; it was directed that 
 the defendant should be acquitted, (to) Willes, C. J., who tried him, 
 seemed to be of opinion that a marriage by a priest of the Church of 
 Rome was a good marriage, (?i) if the ceremony according to that 
 church could be proved ; namely, the words of the contracting part 
 of it. 
 
 The former Marriage Act, 26 Geo. 2, c. 33, required all marriages to 
 be by banns or licence : and declared that all marriages solemnized in 
 any other place than a church or public chapel (unless by special 
 licence), or solemnized without publication of banns or licence, should 
 be null and void to all intents and purposes. It contained also special 
 provisions as to the publication of banns ; and, as to marriages by 
 licence, it provided that all such marriages, where either of the parties, 
 not being a widower or widow, was under the age of twenty-one years, 
 had without the consent of the father of such of the parties so under 
 age (if then living) first had and obtained ; or if dead, of the guardian 
 or guardians of the person of the party so under age, lawfully appointed, 
 or one of them ; and in case there was no such guardian or guardians, 
 then of the mother (if living and unmarried) ; or if there was no 
 mother living and unmarried, then of a guardian or guardians of the 
 person appointed by the Court of Chancery ; should be absolutely null 
 aud void to all intents and purposes whatsoever, (o) But these pro- 
 proved that her sister married M. in 1846 understood of the marriage of persons of 
 and died in 1848, and that the witness mar- that communion. 
 
 ried M. in 1849, Erie, J., held that this (o) Sec. 11. By sec. 12 provision was 
 
 showed the latter marriage to be void. R. made for a petition to the Lord Chancellor, 
 v. Young, 5 Cox, C. C. 296. &c, where the guardians or mother were not 
 
 (/') R. v. Brighton, 1 Best & S. 447. in a situation to consent, or to refuse to con- 
 
 (j) Brook v. Brook, 3 Smale & G. 481. sent. By sec. 4 licences were to he granted 
 9 H. L. C. 193. Such affinity can only be to solemnize matrimony in the church or 
 constituted by marriage, and not by sexual chapel of such parish only where one of the 
 intercourse. Wing v. Taylor, 2 Swabey parties had resided for four weeks before. 
 
 T. 278. But by see. 10 proof of the actual dwelling 
 
 (£) By Denison, J., referred to by the in the parishes, &c, where a marriage was 
 Court in .Morris v. Miller, 1 Black. R. 632. by banns, or of the usual place of abode of 
 
 (/) R. v. Brampton, 10 East, 287, note one of the parties, where a marriage was by 
 (h), licence, was made unnecessary after the 
 
 (;/?) Lyon's case, Old Bailey, 1738. 1 solemnization of the marriage, and evidence 
 East, P. C. c. 12, s. 10, p. 469, citing Ser- was not to be received in either of these 
 jeant Foster's MS. cases to prove the contrary, in any suit 
 
 (?;) To this Mr. East (id. ibid.) subjoins touching the validity of the marriage. 
 a quaere, and says that it must at least be
 
 chap, xxx.] Of Bigamy. 667 
 
 visions as to marriages by licence were repealed as to any marriages 
 thereafter to be solemnized by the 3 Geo. 4, c. 75, s. 1, which passed 
 on the 22nd of July, 1822, and came into operation on the 1st of 
 September following : and it was further enacted, that in all cases of 
 marriage solemnized by licence before the passing of this Act of 3 Geo. 
 4, without any such consent, and where the parties had continued to 
 live together as husband and wife till the death of one of them, or till 
 the passing of the Act, or had only discontinued their cohabitation for 
 the purpose, or during the pending of any proceedings touching the 
 validity of such marriage, such marriage, if not otherwise invalid, 
 should be deemed good and valid to all intents and purposes, (p) 
 
 A pauper, not being a widow, and being under age, was married by 
 licence in 1808, without the consent of her father, who was then 
 living, and continued to live with her husband till 1825, when she 
 married another man, her first husband being still alive ; it was held 
 that the first marriage was rendered valid by 3 Geo. 4, c. 75, s. 2, 
 because the parties had lived together till that Act passed, and was 
 not rendered invalid by the pauper's subsequent marriage to another 
 person. (^) But where two minors were married by licence and with- 
 out consent of parents, in 1816 ; and, after cohabiting for a few 
 months, the owner of the house where they lodged compelled the 
 husband to leave it for his misconduct, and he never lived with his 
 wife afterwards, and died in 1817 ; and shortly after the separation he 
 on several occasions had declared that he would never live with her 
 again, giving as one reason that she was not his lawful wife ; but some 
 evidence was given that after the separation she had received small 
 sums which were ultimately allowed out of the rent of the husband's 
 land, but whether by his direction or not did not appear ; it was 
 held that the marriage was not rendered valid by the 3 Geo. 4, c. 75, 
 s. 2. O) 
 
 A prisoner was married on the 30th of August, 1822, by licence, and 
 without the consent of either of her parents, she being between sixteen 
 and seventeen years of age ; it was held, on a case reserved, that the 
 marriage was valid, for under the 3 Geo. 4, c. 75, which passed on the 
 
 (p) 3 Geo. 4, c. 75, s. 2. Sec. 3 provided from the effects of proof in such causes, &c, 
 that the Act should not render valid any of the validity of such marriage, or the 
 marriage declared invalid by any Court of illegitimacy of such descendant. By sec. 6, 
 competent jurisdiction before the passing of if before the Act, any property had been 
 the Act ; nor any marriage where cither possessed, or any title of honour enjoyed on 
 party should at any time afterwards, during the ground of the invalidity of any mar- 
 the life of the other party, have lawfully riage, by reason that it was solemnized with- 
 intermarried with any other person. Nor out consent, then although no sentence had 
 (by sec. 4) any marriage, the invalidity of been pronounced against the validity of such 
 which had been established before the pas- marriage, the right and interest in such prop- 
 sing of the Act, upon the trial of any issue erty or title of honour should in no man- 
 touching its validity, or touching the legi- ner be affected or prejudiced. And by sec. 
 timacy of any person alleged to be the 7 nothing in the Act was to affect any act 
 descendant of the parties to such marriage, done before the passing of the Act, under 
 Nor (by sec. 5) any marriage the validity of the authority of any Court, or in theadmin- 
 which, or the legitimacy of any person istration of any personal estate or effects, or 
 alleged to be the lawful descendant of the the execution of any will or testament, or 
 parties married, had been duly brought into the performance of any trust, 
 question in proceedings in any cause, &c, in {q) R.v. St. John Del pike. 2 B. Ad. 
 which judgments, or decrees, or orders of 226. 
 
 Court, had been pronounced or made before (>•) Poole v. Poole, 2 Tyrw. R. 76. 
 
 the passing of the Act, in consequence of or
 
 668 Marriage Acts. [book n. 
 
 22nd of July, 1822, the 26 Geo. 2, c. 33, s. 11, had ceased to operate, 
 and the provisions as to marriages by licences in the 3 Geo. 4, c. 75, did 
 not come into force till the first of September following, (s) 
 
 The 3 Geo. 4, c. 75, contained also enactments as to the granting of 
 licences, the consent of parents and guardians, and the publication of 
 banns, which have been repealed by the 4 Geo. 4, c. 17, which enacted, 
 that licences should and might be granted by the same persons, and 
 in the same manner and form, and, in the case of minors, with the 
 same consent, and banns be published in the same manner and form 
 as licences and banns were respectively regulated by the 26 Geo. 2, 
 c. 33 ; and enacted also (by section 2) that all marriages which had 
 been or should be solemnized under licences granted, or banns pub- 
 lished, conformably to the provisions of the 3 Geo. 4, c. 75, should be 
 good and valid ; and that no marriage solemnized under any licence 
 granted in the form or manner prescribed by either the 26 Geo. 2, 
 c. 33, or the 3 Geo. 4, c. 75, should be deemed invalid on account of 
 want of consent of any parent or guardian. The old Marriage Act 
 was then in a great measure revived, though only for a short period. 
 The 4 Geo. 4, c. 5, was passed to render valid certain marriages which 
 had been solemnized by licences granted through error, after the 
 passing of the 3 Geo. 4, c. 75, by or in the name of bodies corporate or 
 persons their officers or surrogates, other than the Archbishops of 
 Canterbury and York, and the bishops within their respective dioceses, 
 who were alone authorised to grant such licences by the 3 Geo. 4, 
 c. 75 ; but this provision of the 4 Geo. 4, c. 5, applies only to marriages 
 solemnized by such erroneous licences granted after the 3 Geo. 4, and 
 before the passing of the 4 Geo. 4, c. 5. 
 
 The 4 Geo. 4, c. 76, (t) reciting that it is expedient to amend the 
 laws respecting marriages in England, enacts, that, after the 1st day 
 of November, 1823, so much of the 26 Geo. 2, c. 33, as was in force 
 immediately before the passing of this Act, and also the 4 Geo. 4, c. 17, 
 shall be repealed, save and except as to any acts, matters, or things, 
 done under the provisions of either of the said Acts, before the said 
 1st day of November, as to which the said Acts are respectively to be 
 of the same force and effect, as if this Act had not been made. 
 
 Sec. 2. 'After the 1st day of November (1823), all banns of 
 matrimony shall be published in an audible manner in the parish 
 church, or in some public chapel, in which chapel banns of matrimony 
 may now or may hereafter be lawfully published, of or belonging to 
 such parish or chapelry, wherein the persons to be married shall dwell, 
 according to the form of words prescribed by the rubric prefixed to the 
 office of matrimony in the Book of Common Prayer, upon three Sun- 
 days preceding the solemnization of marriage, during the time of 
 morning service, or of evening service (if there shall be no morning 
 service in such church or chapel upon the Sunday upon which such 
 banns shall be so published), immediately after the second lesson ; and 
 whensoever it shall happen that the persons to be married shall dwell 
 in divers parishes or chapelries, the banns shall in like manner be 
 published in the church, or in such chapel as aforesaid, belonging to 
 such parish or chapelry wherein each of the said persons shall dwell ; 
 
 (s) R. v. Waully, R. & M. C. 0. R. (0 See 36 & 37 Vict. c. 91. 
 
 163.
 
 chap, xxx.] Of Bigamy. 669 
 
 and that all other the rules prescribed by the said rubric concerning 
 the publication of banns, and the solemnization of matrimony, and not 
 hereby altered, shall be duly observed , and that in all cases where 
 banns shall have been published, the marriage shall be solemnized in 
 one of the parish churches or chapels where such banns shall have 
 been published, and in no other places whatsoever.' 
 
 Sec. 3. ' The bishop of the diocese, with the consent of the patron 
 and the incumbent of the church of the parish in which any public 
 chapel, having a chapelry thereunto annexed, may be situated, or of 
 any chapel situated in an extra-parochial place, signified to him under 
 their hands and seals respectively, may authorize, by writing under 
 his hand and seal, the publication of banns and the solemnization of 
 marriages in such chapel for persons residing within such chapelry or 
 extra-parochial place respectively; and such consent, together with 
 such written authority, shall be registered in the registry of the 
 diocese.' 
 
 Sec. 4. ' In every chapel in respect of which such authority shall 
 be given as aforesaid, there shall be placed in some conspicuous part 
 of the interior of such chapel a notice in the words following : <: Banns 
 may be published, and marriages solemnized in this chapel." ' 
 
 Sec. 5. ' All provisions now in force, or which may hereafter be 
 established by law, relative to providing and keeping marriage 
 registers in any parish churches, shall extend and be construed to 
 extend to any chapel in which the publication of banns and solemni- 
 zation of marriages shall be so authorized as aforesaid, in the same 
 manner as if the same were a parish church , and everything required 
 by law to be done relative thereto by the churchwardens of any parish 
 church, shall be done by the chapelwarden, or other officer exercising 
 analogous duties in such chapel, (u) 
 
 Sec. 6. ' On or before the said 1st day of November, and from time 
 to time afterwards as there shall be occasion, the churchwardens and 
 chapel wardens of churches and chapels, wherein marriages are solem- 
 nized, shall provide a proper book of substantial paper, marked and 
 ruled respectively in manner directed for the register book of marriages ; 
 and the banns shall be published from the said register book of banns 
 by the officiating minister, and not from loose papers, and after publi- 
 cation shall be signed by the officiating minister, or by some person 
 under his direction,' 
 
 Sec. 7. ' No parson, vicar, minister, or curate, shall be obliged to 
 publish the banns of matrimony between any persons whatsoever, 
 unless the persons to be married shall, seven days at the least before 
 the time required for the first publication of such banns respectively, 
 deliver, or cause to be delivered to such parson, vicar, minister, or 
 curate, a notice in writing, dated on the day on which the same shall 
 be so delivered, of their true Christian names and surnames, and of the 
 house or houses of their respective abodes within such parish or 
 chapelry as aforesaid, and of the time during which they have dwelt, 
 inhabited, or lodged, in such house or houses respectively.' 
 
 Sec. 8. ' No parson, minister, vicar, or curate, solemnizing marriages 
 after the first day of November next, between persons, both or one of 
 
 (u) See as to the registration of marriages, 6 & 7 Will. 4, c. 86, ss. 1, 30, 31.
 
 670 Marriage Acts. [book ii. 
 
 whom shall be under the age of twenty-one years, after banns pub- 
 lished, shall be punishable by ecclesiastical censures for solemnizing 
 such marriages without consent of parents or guardians, unless such 
 parson, minister, vicar, or curate, shall have notice of the dissent of 
 such parents or guardians ; and in case such parents or guardians, or 
 one of them, shall openly and publicly declare or cause to be declared, 
 in the church or chapel where the banns shall be so published, at 
 the time of such publication, his, her, or their dissent to such marriage, 
 such publication of banns shall be absolutely void.' 
 
 Sec. 9. ' Wherever a marriage shall not be had within three months 
 after the complete publication of banns, no minister shall proceed to 
 the solemnization of the same, until the banns shall have been repub- 
 lished on three several Sundays in the form and manner prescribed in 
 this Act, unless by licence duly obtained according to the provisions 
 of this Act.' 
 
 Sec. 10. 'No licence of marriage shall, from and after the said first 
 day of November, be granted by any archbishop, bishop, or other 
 ordinary, or person having authority to grant such licences, to solem- 
 nize any marriage in any other church or chapel than in the parish 
 church, or in some public chapel of or belonging to the parish or 
 chapelry within which the usual place of abode of one of the persons 
 to be married shall have been for the space of fifteen days immediately 
 before the granting of such licence.' 
 
 Sec. 11. 'If any caveat be entered against the grant of any licence 
 for a marriage, such caveat being duly signed by or on the behalf of 
 the person who enters the same, together with his place of residence,, 
 and the ground of objection on which his caveat is founded, no licence 
 shall issue till the said caveat, or a true copy thereof, be transmitted to- 
 the judge out of whose office the licence is to issue, and until the judge 
 has certified to the registrar that he has examined into the matter of 
 the caveat, and is satisfied that it ought not to obstruct the grant of 
 the licence for the said marriage, or until the caveat be withdrawn 
 by the party who entered the same." 
 
 Sec. 12. 'All parishes where there shall be no parish church or 
 chapel belonging thereto, or none wherein divine service shall be 
 usually solemnized every Sunday, and all extra-parochial places 
 whatever, having no public chapel wherein banns may be lawfully 
 published, shall be deemed and taken to belong to any parish or 
 chapelry next adjoining, for the purposes of this Act only ; and 
 where banns shall be published in any church or chapel of any 
 parish or chapelry adjoining to any such parish or chapelry where 
 there shall be no church or chapel, or none wherein divine service 
 shall be solemnized as aforesaid, or to any extra-parochial place as 
 aforesaid, the parson, vicar, minister, or curate, publishing such 
 banns, shall, in writing under his hand, certify the publication 
 thereof in the same manner as if either of the persons to be mar- 
 ried had dwelt in such adjoining parish or chapelry.' 
 
 Sec. 13. ' If the church of any parish, or chapel of any chapelry, 
 wherein marriages have been usually solemnized, be demolished in 
 order to be rebuilt, or be under repair, and on such account be 
 disused for public service, it shall be lawful for the banns to be 
 proclaimed in a church or chapel of any adjoining parish or chapelry
 
 chap, xxx.] Of Bigamy. 671 
 
 in which banns are usually proclaimed, or in any place within the 
 limits of the parish or chapelry which shall be licensed by the bishop 
 of the diocese for the performance of divine service, during the repair 
 or rebuilding of the church as aforesaid ; and where no such place 
 shall be so licensed, then, during such period as aforesaid, the mar- 
 riage may be solemnized in the adjoining church or chapel wherein 
 the banns have been proclaimed, and all marriages heretofore solem- 
 nized in other places within the said parishes or chapelries than the 
 said churches or chapels, on account of their being under repair, or 
 taken down in order to be rebuilt, shall not be liable to have their 
 validity questioned on that account, nor shall the ministers who have 
 so solemnized the same be liable to any ecclesiastical censure, or to 
 any other proceeding or penalty whatsoever.' This enactment being 
 defective in not providing that marriages might be solemnized in the 
 places licensed for the proclamation of banns ; nor that marriages 
 might be solemnized by licence in an adjoining church or chapel ; 
 nor that the validity of marriages thereafter solemnized in other 
 places than the churches and chapels out of repair, should not be 
 questioned on that account ; nor that the ministers who should 
 thereafter solemnrze such marriages should not be liable to ecclesi- 
 astical censure, &c. ; the 5 Geo. 4, c. 32, enacts, that ' all marriages 
 which have been heretofore solemnized, or which shall be hereafter 
 solemnized in any place within the limits of such parish or chapelry 
 so licensed for the performance of divine service, during the repair 
 or rebuilding of the church of any parish, or chapel of any chapelry, 
 wherein marriages have been usually solemnized ; or if no such place 
 shall be so licensed, then in a church or chapel of any adjoining 
 parish or chapelry in which banns are usually proclaimed, whether 
 by banns lawfully published in such church or chapel, or by licence 
 lawfully granted, shall not have their validity questioned on account 
 of their having been so solemnized, nor shall the ministers who 
 have so solemnized the same be liable to an ecclesiastical censure, 
 or to any other proceeding.' And that all licences granted by any 
 person having authority to grant them for the solemnization of 
 marriages in a church or chapel, wherein marriages have been 
 usually solemnized, shall be deemed to be licences for the solem- 
 nization of marriages in any place within the limits of such parish 
 or chapelry, which shall be licensed by the bishop for the perform- 
 ance of divine service, during the repair or rebuilding of any such 
 church or chapel, or if no place shall be so licensed, then in the 
 church or chapel of any adjoining parish or chapelry wherein mar- 
 riages have been usually solemnized, (v) And also that all banns 
 proclaimed, and all marriages solemnized, according to the provisions 
 of this Act in any place so licensed, within the limits of any parish 
 or chapelry, during the repair or rebuilding of the church, &c, shall 
 be considered as proclaimed and solemnized in the church, &c, and 
 shall be so registered accordingly, (w) 
 
 The 4 Geo. 4, c= 76, s. 14, enacts, ' for avoiding all fraud and collu- 
 sion in obtaining of licences for marriage, that before any such licence 
 be granted, one of the parties shall personally swear before the surro- 
 
 (v) Sec. 2. passed to render valid marriages in particu- 
 
 [w) Sec. 3. Many other Acts have lar churches and chapels.
 
 672 Marriage Acts. [book ii. 
 
 gate, or other person having authority to grant the same, that he or 
 she believeth that there is no impediment of kindred or alliance, or of 
 any other lawful cause, nor any suit commenced in any ecclesiastical 
 court, to bar or hinder the proceeding of the said matrimony according 
 to the tenor of the said licence ; and that one of the said parties hath, 
 for the space of fifteen days immediately preceding such licence, had 
 his or her usual place of abode within the parish or chapelry within 
 which such marriage is to be solemnized ; and where either of the parties, 
 not being a widower or widow, shall be under the age of twenty-one 
 years, that the consent of the person or persons whose consent to such 
 marriage is required under the provisions of this Act has been obtained 
 thereto : provided always, that if there should be no such person or 
 persons having authority to give such consent, then upon oath made 
 to that effect by the party requiring such licence, it shall be lawful to 
 grant such licence notwithstanding the want of any such consent.' 
 
 Sec. 15. 'It shall not be required of any person applying for such 
 licence to give any caution or security, by bond or otherwise, before 
 such licence is granted, anything in any Act or canon to the contrary 
 thereof notwithstanding.' 
 
 Sec. 16. 'The father, if living, of any party under twenty -one years 
 of age, such parties not being a widower or widow ; or, if the father 
 shall be dead, the guardian or guardians of the person of the party so 
 under age, lawfully appointed, or one of them ; and, in case there shall 
 be no such guardian or guardians, then the mother of such party, if 
 unmarried ; and, if there shall be no mother unmarried, then the 
 guardian or guardians of the person appointed by the Court of Chan- 
 cery, if any, or one of them, shall have authority to give consent to 
 the marriage of such party ; and such consent is hereby required for 
 the marriage of such party so under age, unless there shall be no per- 
 son authorized to give such consent.' (x) 
 
 Sec. 17. ' In case the father or fathers of the parties to be married, 
 or of one of them, so under age as aforesaid, shall be non compos 
 mentis, or the guardian or guardians, mother or mothers, or any of 
 them, whose consent is made necessary as aforesaid to the marriage 
 of such party or parties, shall be non compos mentis, or in parts 
 beyond the seas, or shall unreasonably, or from undue motives, refuse, 
 or withhold his, her, or their consent, to a proper marriage, then it 
 shall and may be lawful for any person desirous of marrying, in any 
 of the before-mentioned cases, to apply by petition to the Lord Chan- 
 cellor, Lord Keeper, or the Lords Commissioners of the Great Seal of 
 Great Britain for the time being, Master of the Eolls, or Vice-Chan- 
 cellor of England, who is and are respectively hereby empowered to 
 proceed upon such petition in a summary way ; and in case the mar- 
 riage proposed shall upon examination appear to be proper, the said 
 Lord Chancellor, Lord Keeper, or Lords Commissioners of the Great 
 Seal for the time being, Master of the Eolls, or Vice-Chancellor, shall 
 judicially declare the same to be so ; and such judicial declaration 
 shall be deemed and taken to be as good and effectual, to all intents 
 and purposes, as if the father, guardian or guardians, or mother of the 
 person so petitioning, had consented to such marriage.' 
 
 (x) This section is merely directory, see E. v. Birmingham, post, p. 693.
 
 chap, xxx.] Of Bigamy. 673 
 
 Sec. 18. ' From and after the said first day of November, no sur- 
 rogate, hereafter to be deputed by any ecclesiastical judge who hath 
 power to grant licences, shall grant any such licence until he hath 
 taken an oath before the said judge, or before a commissioner 
 appointed by commission under the seal of the said judge, which 
 commission the said judge is hereby authorized to issue, faithfully to 
 execute his office according to law, to the best of his knowledge, and 
 hath given security by his bond in the sum of one hundred pounds to 
 the bishop of the diocese for the due and faithful execution of his 
 said office.' 
 
 Sec. 19. ' Whenever a marriage shall not be had within three 
 months after the grant of a licence by any archbishop, bishop, or any 
 ordinary or person having authority to grant such licence, no minister 
 shall proceed to the solemnization of such marriage until a new 
 licence shall have been obtained, unless by banns duly published 
 according to the provisions of this Act.' 
 
 Sec. 20. ' Nothing hereinbefore contained shall be construed to 
 extend to deprive the Archbishop of Canterbury and his successors, 
 and his and their proper officers, of the right which hath hitherto 
 been used, in virtue of a certain statute made in the twenty-fifth year 
 of the reign of the late King Henry the Eighth, intituled, " An Act 
 concerning Peter-pence and Dispensations," of granting special licences 
 to marry at any convenient time or place.' (y) 
 
 Sec. 22. ' If any persons shall knowingly and wilfully intermarry 
 in any other place than a church, or such public chapel wherein banns 
 may be lawfully published, unless by special licence as aforesaid, or 
 shall knowingly and wilfully intermarry without due publication of 
 banns, or licence from a person or persons having authority to grant 
 the same first had and obtained, or shall knowingly and wilfully con- 
 sent to or acquiesce in the solemnization of such marriage by any 
 person not being in holy orders, the marriages of such persons shall 
 be null and void to all intents and purposes whatsoever.' (z) 
 
 Sec. 26. ' After the solemnization of any marriage under a publica- 
 tion of banns, it shall not be necessary in support of such marriage to 
 give any proof of the actual dwelling of the parties in the respective 
 parishes or chapelries wherein the banns of matrimony were pub- 
 lished ; or, where the marriage is by licence, it shall not be necessary 
 to give any proof that the usual place of abode of one of the parties, 
 for the space of fifteen days as aforesaid, was in the parish or chapelry 
 where the marriage was solemnized , nor shall any evidence in either 
 of the said cases be received to prove the contrary, in any suit touch- 
 ing the validity of such marriage.' (a) 
 
 {y) m By sec. 21, persons solemnizing mar- forfeit all property accruing from the mar- 
 riage in any other place than a church or riage. 
 
 chapel, or without banns or licence, or (a) Upon an enactment nearly similar, 
 
 under pretence of being in holy orders, shall it was determined, in a prosecution for 
 
 be transported for fourteen years, the pro- bigamy, where the first marriage was proved 
 
 sedition to be commenced within three to have been by banns, that it was no 
 
 years. objection that the parties did not reside in 
 
 (2) By sec. 23, where a marriage is sol- the parish where the banns were published 
 
 emnized between parties, one of whom is and the marriage was celebrated. The pro- 
 
 under age, and not a widower or widow, vision of the statute was considered as an 
 
 contrary to the provisions of the Act, by express answer to the objection ; and it 
 
 false oath or fraud, the guilty party shall appears not to have been adverted to when 
 vol. i. — 43
 
 674 Marriage Acts. [book ii. 
 
 Sec. 28. ' All marriages shall be solemnized in the presence of two 
 or more credible witnesses, besides the minister who shall celebrate 
 the same ; and immediately after the celebration an entry shall be 
 made in the register.' 
 
 Sec. 30. ' This Act, or anything therein contained, shall not extend 
 to the marriages of any of the royal family.' 
 
 Sec. 31. ' Nothing in this Act contained shall extend to any mar- 
 riages amongst the people called Quakers, or amongst the persons 
 professing the Jewish religion, where both the parties to any such 
 marriage shall be of the people called Quakers, or persons professing 
 the Jewish religion respectively.' (b) 
 
 The 6 & 7 Will. 4, c. 85, (c) s. 1, enacts, that ' notwithstanding any- 
 thing in this Act contained, all the rules prescribed by the rubric 
 concerning the solemnizing of marriages shall continue to be duly 
 observed by every person in holy orders of the Church of England 
 who shall solemnize any marriage in England : provided always, that 
 where by any law or canon in force before the passing of this Act it 
 is provided that any marriage may be solemnized after publication of 
 banns, such marriage may be solemnized in like manner on production 
 of the registrar's certificate as hereinafter provided ; (d) provided also, 
 that nothing in this Act contained shall affect the right of the Arch- 
 bishop of Canterbury and his successors, and his and their proper 
 officers, to grant special licences to marry at any convenient time and 
 place, or the right of any surrogate or other person now having 
 authority to grant licences for marriages.' 
 
 Sec. 2. ' The Society of Friends, commonly called Quakers, and also 
 persons professing the Jewish religion, may continue to contract and 
 solemnize marriage according to the usages of the said society and 
 of the said persons respectively ; and every such marriage is hereby 
 declared and confirmed good in law, provided that the parties to such 
 marriage be both of the same society, or both persons professing the 
 Jewish religion respectively, provided also, that notice to the registrar 
 shall have been given, and the registrar's certificate shall have issued 
 in manner hereinafter provided.' (e) 
 
 the point was reserved for the opinion of tendent registrar by whom such certificate 
 
 the judges. R. v. Hind, E. & R. 253. as aforesaid shall have been issued.' 
 
 (5) By sec. 33, the Act only extends to (c) The 23 & 24 Vict. c. 18, recites this 
 
 England. clause, and sec. 12 of the 7 & 8 Vict. c. 81 
 
 (c) By 37 & 38 Vict. c. 35 (passed 16th (I.), and enacts ' that after the 30th of June, 
 July, 1874), this Act is repealed in part. 1860, marriages may be contracted and sol- 
 
 (d) The 1 Vict. c. 22, s. 36, after recit- emnized according to the usages of the said 
 ing this provision, enacts, ' that the giving Society of Friends, called Quakers, in Eng- 
 the notice to the superintendent registrar, land and Ireland respectively, not only in 
 and the issue of the superintendent registrar's the case provided for by the said recited 
 certificate, as in the said Act and by this provisions, but also in cases where one only 
 Act provided, shall be used and stand or where neither of the parties to the mar- 
 instead of the publication of banns to all riage shall be a member of the said society ; 
 intents and purposes where no such pub- [provided that the party or parties who 
 lication shall have taken place ; and every shall not be a member or members of the 
 parson, vicar, minister, or curate in Eng- said society shall profess with or be of the 
 land shall solemnize marriage after such persuasion of the said society ;] provided 
 notice and certificate as aforesaid in like also that no person who is not a member of 
 manner as after due publication of banns : the said society shall be married according 
 provided always that the church wherein to the usages thereof, unless he or she shall 
 any marriage according to the rites of the be authorized thereto, under or in pursuance 
 Church of England shall so be solemnized of some general rule or rules of the said 
 shall be within the district of the superin- society, in England and Ireland respec-
 
 cnAP. xxx.] 
 
 Of Bigamy. 
 
 675 
 
 Sec. 3. ' The superintendent registrar of births and deaths of every 
 union, parish, or place shall be, in right of his office, superintendent 
 registrar of marriages within such union, parish or place, and such 
 union, parish, or place shall be deemed the district of each superin- 
 tendent registrar of marriages.' 
 
 Sec. 4. ' In every case of marriage intended to be solemnized in 
 England after the said first day of March, (/) according to the rites 
 of the Church of England (unless by licence or by special licence, or 
 after publication of banns), and in every case of marriage intended to 
 be solemnized in England after the said first day of March, according 
 to the usages of the Quakers or Jews, or according to any form author- 
 ized by this Act, one of the parties shall give notice under his or her 
 hand to the superintendent registrar of the district within which the 
 parties shall have dwelt for not less than seven days then next pre- 
 ceding, or if the parties dwell in the districts of different superintend- 
 ent registrars shall give the like notice to the superintendent registrar 
 of each district, and shall state therein the name and surname and 
 the profession or condition of each of the parties intending marriage, 
 the dwelling place of each of them, and the time not being less than 
 seven days during which each has dwelt therein, and the church or 
 other building in which the marriage is to be solemnized ; provided 
 that if either party shall have dwelt in the place stated in the notice 
 during more than one calendar month, it may be stated therein that 
 he or she hath dwelt there one month and upwards.' (g) 
 
 tively ; and a copy of such general rule or 
 rules purporting to be signed by the record- 
 ing clerk for the time being of the said 
 society in London and in Dublin respec- 
 tively, shall be admitted as evidence of 
 such general rule or rules in all proceedings 
 touching the validity of any such marriage.' 
 By sec. 2, all enactments then in force 
 relating to marriages according to the usages 
 of the said society are extended to every 
 marriage contracted under this Act. 
 
 The part within brackets is repealed by 
 the 37 & 38 Vict. c. 66, the Statute Law 
 Revision Act, 1875. 
 
 By 35 Vict. c. 10, s. 1, ' From and after 
 the 1st day of January, 1873, the said 
 recited Act of the 23rd and 24th years of 
 the reign of Her present Majesty, chap- 
 ter 18, shall be construed and shall take 
 effect as if the words next hereinafter 
 specified were omitted therefrom, namely, 
 "Provided always, that the party or parties 
 who shall not be a member or members of 
 the said society shall profess with or be of 
 the persuasion of the said society." Pro- 
 vided that no marriage shall be valid under 
 this Act, unless when notice of the intention 
 to solemnize such marriage is given to the 
 superintendent-registrar in England, or (as 
 the case may be) to the registrar of marriages 
 in Ireland, as required by law, a certificate 
 shall be produced to such superintendent- 
 registrar or registrar of marriages, purporting 
 to be signed by some registering officer of the 
 said Society of Friends in England or in 
 Ireland respectively, to the effect that the 
 party by whom or on whose behalf such 
 
 notice is given, or each such party (as the 
 case may be), is authorised thereto, under 
 or in pursuance of some general rule or 
 rules of the said society in England or Ireland 
 respectively, and such certificate shall be 
 for all purposes conclusive evidence that 
 the party by whom or on whose behalf 
 such notice is given, or each such party (as 
 the case may be), is duly authorised to 
 proceed to the accomplishment of such mar- 
 riage according to the usages of the said 
 society, and the register of such marriage, 
 or a copy thereof duly certified according to 
 law, shall be conclusive evidence of the due 
 production of such certificate as aforesaid, 
 but no such certificate shall be required in 
 cases where the party giving such notice 
 shall declare, either verbally or in writing, 
 if thereunto required, that both the parties 
 to the intended marriage are either mem- 
 bers of the said society or in profession 
 with or of the persuasion thereof.' 
 
 All marriages solemnized in England 
 before July 1, 1837, and in Ireland before 
 April 1, 1845, according to the usages of 
 the Quakers or Jews, are rendered valid by 
 the 10 & 11 Vict. c. 58, provided the parties 
 were both Quakers or both persons profess- 
 ing the Jewish religion. As to marriage 
 of Jews in Ireland, see 7 & 8 Vict. c. 81, 
 s. 13 ; 34 & 35 Vict. c. 49, s. 28. See 19 
 & 20 Vict. c. 119, s. 21, post, p. 687. 
 
 (f) See note to sec. 1, ante, p. 674. 
 
 (g) By 1 Vict. c. 22, s. 10, the registrar- 
 general may unite two or more districts, 
 and by sec. 11 may divide districts. See 
 the 19 & 20 Vict. c. 119, s. 3, post, p. 683.
 
 676 Marriage Acts. [book ii. 
 
 Sec. 5. ' The superintendent registrar shall file all such notices, 
 and keep them with the records of his office, and shall also forthwith 
 enter a true copy of all such notices fairly into a book, to be for that 
 purpose furnished to him by the registrar-general, to be called " the 
 marriage notice book," the cost of providing which shall be defrayed 
 in like manner as the cost of providing register books of births 
 and deaths ; (k) and the marriage notice book shall be open at all 
 reasonable times without fee to all persons desirous of inspecting the 
 same ; and for every such entry the superintendent registrar shall be 
 entitled to have a fee of one shilling.' 
 
 By sec. 8 the registrar-general is to furnish the superintendent 
 registrars with forms of certificates, which are to be distinguished in 
 certain ways where the marriage is by licence, and where it is without 
 licence. 
 
 Sec. 9. ' Any person authorised in that behalf may forbid the issue 
 of the superintendent registrar's certificate by writing at any time 
 before the issue of such certificate the word ' forbidden ' opposite to 
 the entry of the notice of such intended marriage in the marriage 
 notice book, and by subscribing thereto his or her name and place of 
 abode, and his or her character, in respect of either of the parties, by 
 reason of which he or she is so authorised ; and in case the issue of 
 any such certificate shall have been so forbidden the notice and all 
 proceedings thereupon shall be utterly void.' 
 
 Sec. 10. ' After the said first day of March, (i) the like consent shall 
 be required to any marriage in England solemnized by licence as 
 would have been required by law to marriages solemnized by licence 
 immediately before the passing of this Act ; and every person whose 
 consent to a marriage by licence is required by law is hereby author- 
 ised to forbid the issue of the superintendent registrar's certificate, 
 whether the marriage is intended to be by licence or without licence.' 
 
 Sec. 11. ' After the said first day of March (i) every superintendent 
 registrar shall have authority to grant licences for marriage in any 
 building registered as hereinafter provided within any district under 
 his superintendence, or in his office ; and every superintendent regis- 
 trar shall four times in every year, on such days as shall be appointed 
 by the registrar-general, make a return to the registrar-general of 
 every licence granted by him since his last return, and of the particu- 
 lars stated concerning the parties : provided always, that no superin- 
 tendent registrar shall grant any such licence until he shall have 
 given security by his bond in the sum of one hundred pounds to the 
 registrar-general for the due and faithful execution of his office : pro- 
 vided also, that nothing herein contained shall authorise any superin- 
 tendent registrar to grant any license for marriage in any church or 
 chapel in which marriages may be solemnized according to the rites 
 of the Church of England, or in any church or chapel belonging to 
 the Church of England or licensed for the celebration of Divine wor- 
 ship according to the rites and ceremonies of the Church of England, 
 or any licence for marriage in any registered building which shall not 
 be within his district.' 
 
 Sec. 13. 'Any person, on payment of five shillings, may enter a 
 
 (h) Repealed as to the costs of registers by (i) See note to sec. 1, ante, p. 674. 
 
 the 21 & 22 Vict. c. 25, s. 6.
 
 chap, xxx.] Of Bigamy. 677 
 
 caveat with the superintendent registrar against the grant of a cer- 
 tificate or a licence for the marriage of any person named therein ; 
 and if any caveat be entered with the superintendent registrar, such 
 caveat being duly signed by or on behalf of the person who enters 
 the same, together with his or her place of residence, and the ground 
 of objection on which his or her caveat is founded, no certificate or 
 licence shall issue or be granted until the superintendent registrar 
 shall have examined into the matter of the caveat, and is satisfied 
 that it ought not to obstruct the grant of the certificate or licence 
 for the said marriage, or until the caveat be withdrawn by the party 
 who entered the same ; provided that in cases of doubt it shall be 
 lawful for the superintendent registrar to refer the matter of any 
 such caveat to the registrar-general, who shall decide upon the same ; 
 provided likewise, that in case of the superintendent registrar refusing 
 the grant of the certificate or licence, the person applying for the 
 same shall have a right to appeal to the registrar -general, who shall 
 thereupon either confirm the refusal or direct the grant of the certi- 
 ficate or licence.' 
 
 By Sec. 14, ' No marriage after such notice as aforesaid, unless by 
 virtue of a licence to be granted by the superintendent registrar, shall 
 be solemnized or registered in England until after the expiration of 
 twenty-one days after the day of the entry of such notice as aforesaid.' 
 
 Sec. 15. ' Whenever a marriage shall not be had within three 
 calendar months after the notice shall have been so entered by the 
 superintendent registrar, the notice and certificate, and any licence 
 which may have been granted thereupon, and all other proceedings 
 thereupon, shall be utterly void ; and no person shall proceed to 
 solemnize the marriage, nor shall any registrar register the same, 
 until new notice shall have been given, and entry made, and certifi- 
 cate thereof given, at the time and in the manner aforesaid.' (J) 
 
 Sec. 18. ' Any proprietor or trustee of a separate building, certified 
 according to law as a place of religious worship, may apply to the 
 superintendent registrar of the district, in order that such building 
 may be registered for solemnizing marriages therein, and in such case 
 shall deliver to the superintendent registrar a certificate, signed in 
 duplicate by twenty householders at the least, that such building has 
 been used by them during one year at the least as their usual place 
 of public religious worship, and that they are desirous that such place 
 should be registered as aforesaid, each of which certificates shall be 
 countersigned by the proprietor or trustee by whom the same shall 
 be delivered ; and the superintendent registrar shall send both certifi- 
 cates to the registrar-general, who shall register such building accord- 
 ingly in a book to be kept for that purpose at the general register 
 office ; and the registrar-general shall indorse on both certificates the 
 date of the registry, and shall keep one certificate with the other 
 records of the general register office, and shall return the other cer- 
 
 • 
 
 tificate to the superintendent registrar, who shall keep the same with 
 the other records of his office ; and the superintendent registrar shall 
 enter the date of the registry of such building in a book to be fiir- 
 
 (j) By sec. 16, the superintendent delivered to the person "by or before whom 
 registrar's certificate or licence is to be the marriage is solemnized.
 
 678 Marriage Acts. [book ii. 
 
 nished to him for that purpose by the registrar-general, and shall give 
 a certificate of such registry under his hand, on parchment or vellum, 
 to the proprietor or trustee by whom the certificates are countersigned, 
 and shall give public notice of the registry thereof by advertisement 
 in some newspaper circulating within the county, and in the " London 
 'Gazette." ' (I:) 
 
 Sec. 20. ' After the expiration of the said period of twenty-one 
 days, or of seven days if the marriage is by licence, marriages may 
 be solemnized in the registered building stated as aforesaid in the 
 notice of such marriage, between and by the parties described in 
 the notice and certificate, according to such form and ceremony as 
 they may see fit to adopt : provided nevertheless, that every such 
 marriage shall be solemnized with open doors, between the hours 
 of eight and twelve in the forenoon, (7) in the presence of some regis- 
 trar of the district in which such registered building is situate, and of 
 two or more credible witnesses : provided also, that in some part of 
 the ceremony, and in the presence of such registrar and witnesses, 
 each of the parties shall declare, 
 
 " I do solemnly declare, that I know not of any lawful impedi- 
 ment why I, A. B., may not be joined in matrimony to C. D." 
 And each of the parties shall say to the other, 
 
 "I call upon these persons here present to witness that I, A. 
 B., do take thee, C. D., to be my lawful wedded wife [or 
 husband]." 
 Provided also, that there be no lawful impediment to the marriage of 
 such parties.' 
 
 Sec. 21. 'Any persons who shall object to marry under the 
 provisions of this Act in any such registered building may, after 
 due notice and certificate issued as aforesaid, contract and solem- 
 nize marriage at the office and in the presence of the superintend- 
 ent registrar and some registrar of the district, and in the presence 
 of two witnesses, with open doors, and between the hours afore- 
 said, making the declaration and using the form of words herein- 
 before provided in the case of marriage in any such registered 
 building.' (m) 
 
 Sec. 26. 'With the consent under the hand and seal of the patron 
 and incumbent respectively of the church of the parish or district 
 in which may be situated any public chapel with or without a 
 chapelry thereunto annexed, or any chapel duly licensed for the 
 celebration of divine service according to the rites and ceremonies 
 of the Church of England, or any chapel the minister whereof is 
 duly licensed to officiate therein according to the rites and cere- 
 monies of the Church of England, or without such consent after 
 two calendar months' notice in writing given by the registrar of 
 
 (Tc) By sec. 19, on the removal of the (m) Sec. 22 regulates the marriage fees 
 same congregation the new place of worship of the registrar. By sec. 23, the registrar 
 may be immediately registered, instead of is to register all marriages solemnized before 
 the one disused, and after such substitution him in books to be sent by the registrar- 
 it shall not be lawful to solemnize any general, and copies of the marriage register 
 marriage in such disused building. book are to be given quarterly to the super- 
 
 (/) Xow eight in the forenoon and three intendent registrar, 
 in the afternoon. See 49 Vict. c. 14, post, 
 p. 687.
 
 chap, xxx.] Of Bigamy. 679 
 
 the diocese to such patron and incumbent respectively, the bishop 
 of the diocese may, if he shall think it necessary for the due accom- 
 modation and convenience of the inhabitants, authorise by a licence 
 under his hand and seal the solemnization of marriages in any such 
 chapel for persons residing within a district the limits whereof shall 
 be specified in the bishop's licence, and under such provisions as to 
 the amount, appropriation, or apportionment of the dues, and as to 
 other particulars, as to the said bishop may seem fit, and as maybe 
 specified in the said licence ; provided that it shall be lawful for 
 any patron or incumbent who shall refuse or withhold consent to the 
 grant of any such licence to deliver to the bishop under his or her 
 hand and seal, a statement of the reasons for which such consent 
 shall have been so refused or withholden ; and no such licence shall 
 be granted by any bishop until he shall have inquired into the 
 matter of such reasons ; and every instrument of consent of the 
 patron and incumbent, or, if such consent be refused or withholden, 
 a copy of the notice under the hand of the registrar, and every 
 statement of reasons alleged as aforesaid by the patron or incum- 
 bent, with the bishop's adjudication thereupon under his hand and 
 seal, shall be registered in the registry of the diocese ; and thence- 
 forth and until the said licence be revoked marriages solemnized 
 in such chapel shall be as valid to all intents and purposes as if 
 the same had been solemnised in the parish church, or in any chapel 
 where marriages might heretofore have been legally solemnized.' (n) 
 
 Sec. 30. ' All provisions which shall from time to time be in force 
 relative to marriages, and to providing, keeping, and transmitting 
 register books and copies of registers of marriages solemnized in any 
 parish church, shall extend to any chapel in which the solemnization 
 of marriages shall be authorised as aforesaid, in the same manner as 
 if the same were a parish church, and everything required by law to 
 be done relating thereto by the rector, vicar, curate, or churchwardens 
 respectively, of any parish church shall be done by the officiating 
 minister, chapelwarden, or other person exercising analogous duties 
 in such chapel respectively.' 
 
 Sec. 31. ' Notwithstanding any such licence as aforesaid to solem- 
 nize marriages in any such chapel, the parties may, if they think fit, 
 have their marriage solemnized in the parish church, or in any chapel 
 in which heretofore the marriage of such parties or either of them 
 might have been legally solemnized.' (o) 
 
 Sec. 42. 'If any persons (p) shall knowingly and wilfully inter- 
 marry after the said first day of March under the provisions of this 
 
 (?i) Sec. 27 provides for the appropria- buildings registered, to be printed. By 
 
 tion of fees on marriages performed in such sec. 36 the registrar may ask certain partic- 
 
 chapels. By sec. 28, the patron or incum- ulars of the parties. By sec. 37 all persons 
 
 bent may appeal to the archbishop against vexatiously entering caveats are liable to 
 
 such licences. costs and damages. By sec. 39 (amended 
 
 (o) By sec. 32 the bishop, with consent by 37 & 38 Vict. c. 35), all persons un- 
 of the archbishop, may revoke such licences; duly solemnizing marriage are guilty of 
 in which case, by sec. 33, the registers are felony. By sec. 40 the superintendent 
 to be sent to the incumbent of the parish registrars who unduly issue certificates are 
 church. By sec. 34, the registrars of the guilty of felony ; and by section 41 all prose- 
 dioceses are to send to the register office, cutions are to be commenced within three 
 yearly, lists of the licensed chapels within years. See also 1 Vict. c. 22, s. 3. 
 their districts, and a list of all chapels and (p) See post, p. 690.
 
 G80 Marriage Acts. [book ii. 
 
 Act in any place other than the church, chapel, registered building, 
 or office or other place specified in the notice and certificate as afore- 
 said, or without due notice to the superintendent registrar, or with- 
 out certificate of notice duly issued, or without licence, in case a 
 licence is necessary under this Act, or in the absence of a registrar 
 or superintendent registrar where the presence of a registrar or super- 
 intendent registrar is necessary under this Act, the marriage of such 
 persons, except in any case hereinafter excepted, shall be null and 
 void : Provided always, that nothing herein contained shall extend to 
 annul any marriage legally solemnized according to the provisions of 
 an Act passed in the fourth year of his late Majesty George the 
 Fourth, intituled " An Act for amending the Laws respecting the 
 Solemnization of Marriages in England." ' (q) 
 
 The 1 Vict. c. 22, (r) s. 23, enacts, that 'the registrar-general, 
 under the direction of one of her Majesty's principal secretaries of 
 state, shall take order that the solemn declaration and form of 
 words provided to be used in the case of marriages under the said 
 Act for marriages be truly and exactly translated into the Welsh 
 tongue, and shall cause the same so translated to be furnished 
 to every registrar of marriages throughout "Wales, and in all places 
 where the Welsh tongue is commonly used ; and it shall be lawful 
 to use the declaration and form of words so translated, and pub- 
 lished by authority, in all places where the Welsh tongue is com- 
 monly used or preferred, in such manner and form and to the same 
 intents and purposes as by the said Act is prescribed in the English 
 tongue.' 
 
 Sec. 33. ' The banns of marriage of any persons may be pub- 
 lished in any chapel licensed by the bishop, according to the pro- 
 visions of the said Act for marriages, for the solemnization of 
 marriages, in which those persons might lawfully be married : and 
 instead of the notice required by the said Act the words " Banns 
 may be published and marriages may be solemnized in this chapel " 
 shall be placed in some conspicuous part in the interior of every 
 such chapel.' 
 
 Sec. 34, reciting, that ' doubts may arise whether under the said 
 recited Acts it is lawful for the bishop to license chapels for mar- 
 riages between parties one only of whom resides within the district 
 specified in such licence ; ' enacts that ' all such licences shall be 
 construed to extend to and authorise marriages in such chapels 
 between parties one or both of whom is or are resident within the 
 said district ; provided always, that where the parties to any mar- 
 riage intended to be solemnized after publication of banns shall 
 reside within different ecclesiastical districts the banns for such 
 marriage shall be published as well in the church or chapel wherein 
 such marriage is intended to be solemnized as in the chapel licensed 
 under the provisions of the said recited Act for the other district 
 within which one of the parties is resident, and if there be no such 
 
 (q) By sec. 44, the provisions of the (r) The 37 & 38 Vict. c. 35, repeals tins 
 
 Registry Act are extended to this Act. Act in part, namely, " for marriages in 
 
 By sec. 45, 'this Act shall extend only England," and sec. 32. 
 to England, and shall not extend to the 
 marriage of any of the royal family.'
 
 chap, xxx.] Of Bigamy. 681 
 
 chapel then in the church or chapel in which the banns of such 
 last-mentioned party might be legally published if the said recited 
 Act had not been passed.' 
 
 Sec. 35. 'Any building which shall have been licensed and used 
 during one year next before registration for public religious wor- 
 ship as a Roman Catholic chapel exclusively shall be taken to be 
 a separate building for the purpose of being registered for the cele- 
 bration of marriages, notwithstanding the same shall be under the 
 same roof with any other building, or shall form a part only of a 
 building.' 
 
 The 3 & 4 Vict. c. 72, s. 1, reciting the 4 Geo. 4, c. 76, 6 & 7 Will. 
 4, c. 85, and 1 Vict. c. 22, and that it is expedient to restrain mar- 
 riages under the 6 & 7 Will. 4, from being solemnized out of the 
 district in which one of the parties dwells, unless either of the parties 
 dwells in the district, within which there is not any registered build- 
 ing, enacts, ' that it is not and shall not be lawful for any superintend- 
 ent registrar to give any certificate of notice of marriage where the 
 building in which the marriage is to be solemnized, as stated in the 
 notice, shall not be within the district wherein one of the parties 
 shall have dwelt for the time required by the said Act of his late 
 Majesty, except as hereinafter is enacted.' 
 
 Sec. 2. ' It shall be lawful for any party intending marriage under 
 the provisions of the said Act of his late Majesty, in addition to the 
 notice required to be given by that Act, to declare at the time of 
 giving such notice,. by indorsement thereon, the religious appellation 
 of the body of Christians to which the party professeth to belong, 
 and the form, rite, or ceremony which the parties desire to adopt in 
 solemnizing their marriage, and that, to the best of his or her knowl- 
 edge and belief, there is not within the district in which one of the 
 parties dwells any registered building in which marriage is solem- 
 nized according to such form, rite, or ceremony, and the district 
 nearest to the residence of that party in which a building is regis- 
 tered wherein marriage is so solemnized, and the registered building 
 within such district in which it is intended to solemnize their mar- 
 riage ; and after the expiration of seven clays or twenty-one days, as 
 the case may require, under the said Act of his late Majesty, it shall 
 be lawful for the superintendent registrar to whom any such notice 
 shall have been given to issue his certificate, according to the pro- 
 visions of that Act ; and after the issuing of such certificate the 
 parties shall be at liberty to solemnize their marriage in the regis- 
 tered building stated in such notice : Provided always, that after any 
 marriage shall have been solemnized it shall not be necessary in sup- 
 port of such marriage to give any proof of the truth of the facts 
 herein authorised to be stated in the notice, nor shall any evidence 
 be given to prove the contrary in any suit touching the validity of 
 such marriage.' (s) 
 
 Sec. 5. ' Notwithstanding anything herein or in the said recited 
 Acts or either of them contained, the Society of Friends commonly 
 called Quakers, and also persons professing the Jewish religion, 
 may lawfully continue to contract and solemnize marriage accord- 
 
 (s) See the 19 & 20 Vict. c. 119, ss. 13, 14, post, pp. 685, 686.
 
 682 Marriage Acts. [book ii. 
 
 ing to the usages of the said society and of the said persons respec- 
 tively, after notice for that purpose duly given, and certificate or 
 certificates duly issued, pursuant to the provision of the said recited 
 Act of his late Majesty, notwithstanding the building or place 
 wherein such marriage may be contracted or solemnized be not situate 
 within the district or either of the districts (as the case may be) in 
 which the parties shall respectively dwell.' 
 
 The 19 & 20 Vict. c. 119, which came into force Jan. 1, 1857, 
 recites that it is expedient to alter and amend the 6 & 7 Will. 4, c. 
 So, 1 Vict. c. 22, and 3 & 4 Vict. c. 72, and by sec. 1 enacts, ' In case 
 of any party intending marriage under the provisions of any of the 
 said recited Acts or of this Act, no notice of such intended marriage 
 .shall be read or published before the guardians of any Poor-law 
 union or parish or place, or be transmitted by any superintendent 
 registrar to the clerk of any such guardians.' 
 
 Sec. 2. ' In case any party shall intend marriage, under the 
 provisions of any of the said recited Acts or of this Act, the party 
 so intending marriage shall, at the time of giving to the super- 
 intendent registrar or respective superintendent registrars, as the 
 case may be, the notice required by the said recited Acts or either of 
 them, make and sign or subscribe a solemn declaration in writing, 
 in the body or at the foot of such notice, that he or she believes that 
 there is no impediment of kindred or alliance or other lawful hin- 
 drance to the said marriage, and that the parties to the said marriage, 
 in case the marriage is intended to be had without licence, have, for 
 the space of seven days immediately preceding the giving of such 
 notice, had their usual place of abode and residence within the dis- 
 trict of the superintendent registrar or respective superintendent 
 registrars to whom such notice or notices, as the case may be, shall 
 be so given ; or, in case such marriage is intended to be had by licence, 
 that one of the said parties hath for the space of fifteen days imme- 
 diately preceding the giving of such notice had his or her usual place 
 of abode and residence within the district of the superintendent 
 registrar to whom such notice shall be so given ; and when either of 
 the parties intending marriage, and not being a widower or widow, 
 shall be under the age of twenty-one years, the party making such 
 declaration shall further declare that the consent of the person or 
 persons whose consent to such marriage is by law required has been 
 given, or (as the case may be) that there is no person whose consent 
 to such marriage is by law required ; and every declaration so made 
 as aforesaid shall be signed and subscribed, by the party making 
 the same, in the presence of the superintendent registrar to whom 
 the notice of marriage containing such declaration is given, or in the 
 presence of his deputy, or of some registrar of births and deaths or 
 of marriages for the district in which the party giving such notice 
 resides, or of the deputy of such registrar, who shall respeetively 
 attest the same by adding thereto his name, description, and place of 
 abode ; and no certificate or licence for marriage shall be issued or 
 granted pursuant to any such notice as aforesaid unless the said 
 notice be accompanied by such solemn declaration duly made and 
 signed or subscribed and attested as aforesaid ; and every person who 
 shall knowingly or wilfully make and sign or subscribe any false
 
 chap, xxx.] Of Bigamy. 683 
 
 declaration, or who shall sign any false notice for the purpose of pro- 
 curing any marriage under the provisions of any of the said recited 
 Acts or this Act, shall suffer the penalties of perjury.' (I) 
 
 Sec. 3. ' Every notice of marriage which shall be given under 
 the provisions of any of the said recited Acts or of this Act, after 
 this Act shall have come into operation, shall be in the form of 
 Schedule (A.) to this Act annexed, or to the like effect ; and in every 
 case where the marriage is intended to be had and solemnized under 
 the provisions of the said recited Act of the third and fourth years 
 of Her Majesty, chapter seventy-two, such notice, shall, in addition 
 to the several particulars comprised in the said schedule, contain the 
 declaration required to be made by one of the parties to such 
 intended marriage, pursuant to the second section of the said last- 
 mentioned Act ; and the superintendent registrar to whom any such 
 notice of marriage shall be so given shall forthwith enter the particu- 
 lars and the date thereof, and the name of the party giving the 
 same, into the marriage notice book ; and for every such entry the 
 superintendent registrar shall be entitled to have a fee of one shilling.' 
 
 Sec. 4. ' In case any party shall intend marriage without licence 
 under the provisions of any of the said recited Acts or of this Act, 
 the superintendent registrar to whom notice of such intended marriage 
 has been given shall cause the notice of marriage, or a true and 
 exact copy thereof, as entered in the marriage notice book, under the 
 hand of such superintendent registrar, to be suspended or affixed in 
 some conspicuous place in the office of the said superintendent 
 registrar during twenty-one successive days next after the day of the 
 entry of such notice in his " Marriage notice book," before any 
 marriage shall be solemnized in pursuance of such notice, and after 
 the expiration of twenty-one days next after the day of the entry of 
 such notice in his " Marriage notice book," the superintendent regis- 
 trar shall issue under his hand, upon the request of the party giving 
 such notice, a certificate in the form or to the effect of the certificate 
 set forth hi Schedule (B.) to this Act annexed, provided that in the 
 meantime no lawful impediment to the issuing of such certificate be 
 shown to the satisfaction of the same superintendent registrar, and 
 provided the issue of such certificate shall not have been forbidden 
 in the manner provided by either of the said firstly and secondly 
 recited Acts by some person or persons authorized in that behalf ; 
 and every such certificate shall state the particulars set forth in 
 the said notice, and the day on which the same notice was entered, 
 and that the issue of such certificate has not been forbidden by 
 any person or persons authorized in that behalf ; and for every 
 such certificate the superintendent registrar shall be entitled to have 
 and receive a fee of one shilling ; and at any time within three 
 calendar months next after the day of the entry of such notice the 
 intended marriage may be solemnized under the authority of the 
 said certificate ; and every superintendent registrar's certificate for 
 marriage duly issued under the provisions of this Act shall have the 
 
 (t) A man may change his surname by c.19, s. 2, for using the new name in signing 
 
 use and reputation, and if by use and rep- a notice for the purpose of procuring his 
 
 utation he has acquired a new one, he is marriage under the 6 & 7 Will. 4, c. 85. R. 
 
 not indictable under the 19 & 20 Vict. v. John Smith, 4 F. & F. 1099.
 
 684 Marriage Acts. [book it. 
 
 same force, validity, and effect as the like certificate issued under the 
 provisions of the said recited Acts or either of them would have had 
 in case this Act had not been passed.' 
 
 Sec. 5. ' In case any party shall intend marriage by licence 
 under the provisions of any of the said recited Acts or of this Act, 
 notice of such intended marriage shall not be suspended in the 
 office of the superintendent registrar, but the party giving the same 
 shall state therein that such marriage is intended to be celebrated by 
 licence.' 
 
 Sec. 6. 'In any case of marriage intended to be solemnized by 
 licence, under the provisions of either of the said two firstly recited 
 Acts or of this Act, between parties both of whom do not dwell in 
 the same superintendent registrar's district, it shall not lie required 
 that notice of such intended marriage shall be given to more than 
 one superintendent registrar, but a notice to the superintendent 
 registrar of the district in which one of the parties so intending 
 marriage resides shall be sufficient ; and it shall not be required that 
 the said notice shall state how long each of the said parties has 
 resided in his or her dwelling-place, but only how long the party 
 residing in the district in which the notice is given has so resided.' (u) 
 
 Sec. 9. 'Every superintendent registrar receiving notice of an 
 intended marriage to be solemnized by licence as aforesaid shall, 
 after the expiration of one whole day next after the day of the entry 
 of such notice in his " Marriage notice book," issue under his hand, 
 upon the request of the party giving such notice, a certificate in the 
 form or to the effect of the certificate set forth in the said Schedule 
 (B.) to this Act annexed, and also a licence to marry, provided that 
 in the meantime no lawful impediment to the issuing of such certifi- 
 cate be shown to the satisfaction of the same superintendent registrar, 
 and provided the issue of such certificate shall not have been forbidden 
 in the manner provided by either of the said firstly and secondly 
 recited Acts by some person or persons authorized in that behalf ; and 
 every such certificate shall state the particulars set forth in the said 
 notice, and the day on which the same notice was entered, and that 
 the issue of such certificate has not been forbidden by any person or 
 persons authorized in that behalf ; and for every such certificate the 
 superintendent registrar shall be entitled to have and receive a fee of 
 one shilling ; and, at any time within three calendar months next 
 after the day of the entry of such notice, the intended marriage may 
 be solemnized under the authority of the said licence ; and every 
 superintendent registrar's certificate and licence for marriage duly 
 issued under the provisions of this Act shall have the same force, 
 validity, and effect as the like certificate and licence issued under the 
 provisions of the said recited Acts or either of them would have had 
 in case this Act had not been passed.' 
 
 Sec. 10. 'The form of a licence for marriage so to be granted as 
 aforesaid to any party or parties, by the superintendent registrar of 
 
 (a.) By sec. 7, notice of marriage with- certificate of proclamation of hanns in Scot- 
 out licence may be given in Ireland if one land as to a party resident there is made 
 of the parties reside there, and marriages equivalent to the superintendent registrar's 
 where such notices have been given in certificate. 
 Ireland are legalised ; and by sec. 8, a
 
 chap, xxx.] Of Bigamy. 685 
 
 any district as aforesaid, shall be in the form or to the effect of the 
 licence set forth in Schedule (C.) to this Act annexed ; and for every 
 such licence the superintendent registrar granting the same shall be 
 entitled to have and receive of the party requiring the same the sum 
 of one pound ten shillings, over and above the amount paid fur the 
 stamps necessary on granting such licence.' 
 
 Sec. 11. 'No such marriage as aforesaid shall be solemnized in any 
 such registered building without the consent of the minister or of one 
 of the trustees, owners, deacons, or managers thereof, nor in any 
 registered building of the Church of Rome without the consent of the 
 officiating minister thereof, nor in any church or chapel of the united 
 Church of England and Ireland without the consent of the minister 
 thereof, nor in such latter case by any other . than a duly qualified 
 clergyman of the said united church, or with any other forms or 
 ceremonies than those of the said united church, any statute or 
 statutes to the contrary notwithstanding.' 
 
 Sec. 12. ' If the parties to any marriage contracted at the registry 
 office of any district conformably to the said recited Acts or any of 
 them, or to the provisions of this Act, shall desire to add the religious 
 ceremony ordained or used by the church or persuasion of which such 
 parties shall be members to the marriage so contracted, it shall be 
 competent for them to present themselves for that purpose to a 
 clergyman or minister of the church or persuasion of which such 
 parties shall be members, having given notice to such clergyman or 
 minister of their intention so to do ; and such clergyman or minister, 
 upon the production of their certificate of marriage before the super- 
 intendent registrar, and upon the payment of the customary fees (if 
 any), may, if he shall see fit, in the church or chapel whereof he is the 
 regular minister, by himself or by some minister nominated by him, 
 read or celebrate the marriage service of the persuasion to which such 
 minister shall belong : Provided always, that no minister of religion 
 who is not in holy orders of the united Church of England and 
 Ireland shall under the provisions of this Act officiate in any church 
 or chapel of the united Church of England and Ireland ; but nothing 
 in the reading or celebration of such service shall be held to supersede 
 or invalidate any marriage so previously contracted, nor shall such 
 reading or celebration be entered, as a marriage among the marriages in 
 the parish register : Provided also, that at no marriage solemnized at 
 the registry office of any district shall any religious service be used 
 at the registry office.' 
 
 Sec. 13. ' When any marriage is intended to be solemnized be- 
 tween parties not of the Society of Friends commonly called Quakers, 
 or not professing the Jewish religion, by licence under the provisions 
 of the before-recited Act of the third and fourth years of her Majesty, 
 chapter seventy-two, in a registered building situated in a district 
 within which neither of the parties resides, it shall be lawful for the 
 superintendent registrar to whom notice of such intended marriage 
 shall have been given to grant to the party applying for the same a 
 licence for such marriage to be solemnized in the registered building 
 stated in such notice ; and every licence and certificate granted in pur- 
 suance of this enactment shall be as valid and effectual to all intents 
 and purposes as if the same had been granted by the superintendent
 
 686 Marriage Ads. [book ii. 
 
 registrar of the district in which the registered building wherein the 
 marriage is intended to be solemnized is situated.' 
 
 Sec. 14. ' When any marriage is intended to be solemnized, under 
 the provisions of any of the before-recited Acts or of this Act, in the 
 usual place of worship of the parties so intending marriage, or one of 
 them, and such place of worship shall be a registered building situ- 
 ated out of the district of their, his, or her residence, it shall be lawful 
 for the superintendent registrar or respective superintendent registrars 
 to whom notice of such marriage shall have been given to grant to 
 the party applying for the same a licence or certificate, as the case 
 may be, for such marriage to be solemnized in the registered build- 
 ing stated in such notice, provided such building be situated not 
 more than two miles beyond the limits of the district in which the 
 notice of such marriage has been given, and the party giving notice of 
 such marriage shall at the time of giving the same state therein, in 
 addition to the description of the building in which the marriage is to 
 be solemnized, that it is the usual place of worship of one of the 
 parties, and shall also state the name of the party whose usual place 
 of worship it is ; and every licence and certificate granted in pursu- 
 ance of this enactment shall be as valid and effectual, to all intents 
 and purposes, as if the same had been granted by the superintendent 
 registrar of the district in which the registered building wherein the 
 marriage is intended to be solemnized is situated.' (v) 
 
 Sec. 17. 'After any marriage shall have been solemnized, under 
 the authority of any of the said recited Acts or of this Act, it shall 
 not be necessary in support of such marriage to give any proof of the 
 actual dwelling or of the period of dwelling of either of the parties- 
 previous to the marriage within the district stated in any notice of 
 marriage to be that of his or her residence, or of the consent to any 
 marriage having been given by any person whose consent thereto is 
 required by law, or that the registered building in which any mar- 
 riage may have been solemnized had been certified according to law 
 as a place of religious worship, or that such building was the usual 
 place of worship of either of the parties, nor shall any evidence be 
 given to prove the contrary in any suit or legal proceedings touching 
 the validity of such marriage ; and all marriages which heretofore 
 have been or which hereafter may be had or solemnized, under the 
 authority of any of the said recited Acts or of this Act, in any build- 
 ing or place of worship which has been registered pursuant to the 
 provisions of the said Act passed in the sixth and seventh years of his 
 late Majesty King "William the Fourth, chapter eighty-five, but which 
 may not have been certified as required by law, shall be as valid in 
 all respects as if such place of worship had been so certified.' (w) 
 
 (v) By sec. 15. the registrar-general may bidding the granting of a certificate by 
 
 appoint registrars of marriages ; and the falsely representing their consent to be 
 
 appointments of registrars of marriages by required by law, are liable to the penalties 
 
 superintendent registrars are to be subject of perjury. By sec. 19, in the case of 
 
 to his approval. By sec. 16, the registrar fraudulent marriages, the guilty party is to 
 
 of marriages may appoint a deputy, and forfeit all the property accruing from the 
 
 where such registrar dies or ceases to hold marriage. By sec. 20, nothing in the Act 
 
 the office, his deputy is to be registrar until is to alter the provisions of the existing 
 
 a new registrar is appointed. Acts, except when they are at variance with 
 
 (w) By sec. 18, persons making false this Act. 
 declarations, or giving false notices, or for-
 
 chap, xxx.] Of Bigamy. 687 
 
 Sec. 21. 'Any marriage according to the usages of the Society of 
 Friends commonly called Quakers, or to the usages of persons pro- 
 fessing the Jewish religion respectively, where the parties thereto 
 are both members of the said Society or both persons professing the 
 Jewish religion respectively, may be solemnized by licence (which 
 licence the superintendent registrar to whom notice of the intended 
 marriage shall have been given is hereby authorized to grant, in the 
 form or to the effect set forth in the said Schedule (C.) to this Act 
 annexed), as effectually in all respects as if such marriage were 
 solemnized after the issue of a certificate by such superintendent 
 registrar in the manner provided by the said recited Acts or any of 
 them ; and the provisions in this present Act contained in relation 
 to the solemn declaration to be made by the party intending marriage, 
 and to the statement to be contained in the notice of such intended 
 marriage that such marriage is intended to be celebrated by licence, 
 and to the notice to be given of any such intended marriage by 
 licence, and to the giving of certificates in the form or to the effect 
 set forth in Schedule (B.) to this Act annexed, and to the fee and 
 stamp to be paid for such licence, shall be applicable in all respects 
 to every such marriage to be solemnized by licence according to the 
 usages of the said Society or to the usages of persons professing the 
 Jewish religion respectively.' (x) 
 
 Sec. 23. 'Every marriage solemnized under any of the said recited 
 Acts or of this Act shall be good and cognizable in like manner as 
 marriages before the passing of the first-recited Act according to the 
 rites of the Church of England.' (y) 
 
 The 20 Vict. c. 19, provides for the turning of certain extraparochial 
 places into parishes, and where any such place has a church or chapel 
 of the Church of England within it, the bishop of the diocese may 
 authorise the publication of banns and the solemnization of marriages 
 by banns or licence in it. (z) And all the provisions as to keeping 
 of marriage registers are extended to such church or chapel, (a) 
 
 The 23 & 24 Vict. c. 24, renders marriages celebrated in any such 
 church or chapel valid where both or either of the parties reside in 
 such district, provided the banns are published in both districts where 
 the parties reside in different districts. By the 49 Vict. c. 14, (1) 
 ' From and after the passing of this Act it shall be lawful to solem- 
 nize a marriage at any time between the hours of eight in the forenoon 
 and three in the afternoon.' By subsection (2), 'No person shall be 
 subject to any proceedings in any court ecclesiastical or temporal for 
 solemnizing matrimony between the aforesaid hours of eight in the 
 forenoon and three in the afternoon.' 
 
 The marriage Acts do not specify what shall be necessary to be 
 observed in the publication of banns, or that the banns shall be pub- 
 lished in the true names of the parties ; but it must be understood as 
 the clear intention of the legislature that the banns shall be published 
 
 (x) By sec. 22, the registrar-general is to shall allow searches, and give extracts from 
 
 furnish marriage register books and forms the returns of certified places of worship. By 
 
 to each certified secretary of a synagogue of sec. 25, the Act does not extend to Scotland 
 
 British Jews. or Ireland. 
 
 (y) Sec. 24 recites the 15 & 16 Vict. (z) Sec. 9. 
 
 c. 36, and enacts that the registrar-general (a) Sec. 10.
 
 688 Construction of Marriage Acts. [book ii. 
 
 in the true names, because it requires that notice in writing shall be 
 delivered to the minister of the true Christian names and surnames 
 of the parties seven days before the publication; and, unless such 
 notice be given, he is not obliged to publish the banns. But a pub- 
 lication in the name which the party has assumed, and by which he 
 is known in the parish, appears to be sufficient, and would, indeed, be 
 the proper publication where the party is not known by his real 
 name. Thus, where a person, whose baptismal and surname was 
 Abraham Langley, was married by banns by the name of George 
 Smith, having been known in the parish where he resided and was 
 married by that name only from his first coming into the parish till 
 his marriage, which was about three years, the marriage was held 
 valid, (b) And a marriage by licence, not in the party's real name, 
 but in the name which he had assumed, because he had deserted, he 
 being known by that name only in the place where he lodged and 
 was married, and where he had resided sixteen weeks, was also held 
 valid. Lord Ellenborough, C. J., said, ' If this name had been assumed 
 for the purpose of fraud in order to enable the party to contract mar- 
 riage, and to conceal himself from the party to whom he was about 
 to be married, that would have been a fraud on the marriage Act and 
 the rights of marriage, and the Court would not have given effect to 
 any such corrupt purpose. But where a name has been previously 
 assumed, so as to have become the name which the party has acquired 
 by reputation, that is, within the meaning of the marriage Act, the 
 party's true name.' (c) 
 
 Under the 26 Geo. 2, c. 33, if there was a total variation of a name 
 or names, that is, if the banns were published in a name or names 
 totally different from those which the parties, or one of them, ever 
 used, or by which they were ever known, the marriage in pursuance 
 of that publication was invalid ; and it was immaterial in such cases, 
 whether the misdescription had arisen from accident or design, or 
 whether such design was fraudulent or not. The pauper and her 
 husband were married in 1817, by banns, by the names of Mary 
 "White and Joseph Betts. The husband had been baptized as the 
 son of J. and M. Betts. M. Betts was the daughter of S. Wilson, 
 and her husband having absconded shortly after their marriage, the 
 pauper's husband was brought up by S. Wilson, and always called 
 by the name of Wilson, and never called or known by any other 
 name either before or after his marriage. The pauper was the daughter 
 of J. and M. Hodgkinson, and was never called or known by any 
 name except Hodgkinson till after her marriage, but in the register 
 of her baptism she was described as ' Mary the daughter of S. White 
 and his wife,' which entry was believed to have been a mistake of the 
 clergyman who baptized her. It was held that the marriage was 
 void. Whether the husband was sufficiently designated by the name 
 of Betts it was unnecessary to inquire, as the Court were clearly of 
 opinion that the woman was never known by, and never used the 
 surname of 'White,' so as to make that, in any latitude of con- 
 struction, ' a true name ' within the meaning of the 26 Geo. 2, 
 c. 33, s. 2.(d) 
 
 (b) R. v. Billinghurst, 3 M. & S. 250. (</) R. v. Tibshelf, 1 B. & Ad. 190. 
 
 (c) R. v. Burton-upon-Trent, 3 M. & 
 S. 537.
 
 chap, xxx.] Of Bigamy. 689 
 
 But under the 26 Geo. 2, c. 33, if there were a partial variation 
 of name only, as the alteration of a letter or letters, or the addition 
 or suppression of one Christian name, or the names had been such 
 as the parties had used, and been known by, at one time, and not 
 at another ; in such cases the publication might, or might not be 
 void ; the supposed misdescription might be explained, and it became 
 a most important part of the inquiry, whether it was consistent with 
 honesty of purpose, or arose from a fraudulent intention, (e) 
 
 But the words of the 4 Geo. 4, c. 76, s. 22, are wholly different 
 from those of the 26 Geo. 2, c. 33, s. 8, and it has been held that in 
 order to invalidate a marriage under the 4 Geo. 4, c. 76, s. 22, it 
 must be contracted with a knowledge by both parties that no due 
 publication of the banns has taken place. Where, therefore, J. C. 
 told Susannah Spencer that he would see the banns properly pub- 
 lished, and she took no steps in the matter, and he told her that 
 they had been published, but procured the banns to be published 
 in the name of Agnes Watts, which name she had never borne ; 
 and in performing the service, the clergyman applied to her the 
 name of Agnes, till which time she believed she was about to be 
 married by her own name, and she did not know, until after the 
 marriage, that the banns had been published in a wrong name; it 
 was held that the marriage was valid. (/) But where both the 
 man and the woman were aware that the banns had been published 
 in a manner to conceal the identity of one of them, it was held that 
 the marriage was void, (g) 
 
 Edward Croxall Tongue, a minor, of the age of seventeen years, 
 and Mary Ann Allen, a widow, of the age of thirty-five years, were 
 married in 1833 by banns, which were published in the names of 
 Edward Tongue, bachelor, and Mary Ann Allen, spinster ; the entry 
 in the register was in the same names and descriptions, and was 
 signed Edward Tongue. The marriage was clandestine and without 
 the knowledge or consent of the parents of Tongue, who was bap- 
 tized by the names of Edward Croxall Tongue, and though known 
 to some persons by the name of Croxall Tongue or Tongue only, 
 was never known by the name of Edward Tongue. It was admitted 
 that the woman was cognizant of the fraud and intended it ; and it 
 was held that as the entry in the register was, Edward Tongue and 
 Mary Ann Allen were married by banns, it was impossible for him 
 not to have known of the publication of the banns ; and the signature 
 of only one of his Christian names showed that he must have known 
 that the banns had been published in that name only ; and, therefore, 
 he, with the woman, knowingly and wilfully intermarried without 
 due publication of banns, (h) 
 
 (e) Per Lord Tenterden, C. J. Ibid. (h) Tongue v. Tongue, 1 Moore. P. C. 
 
 See Sullivan v. Sullivan, 2 Hagg. C. R. 254; 90. There was also evidence that it was the 
 
 Frankland v. Nicholson, 3 M. & S. 261, regular course to make the parties examine 
 
 1 Phil. P. 147 ; Pougett v. Tomkins, 3 M. the entry in the banns book before a mar- 
 
 & S. 263 ; Mather v. Ney, 3 M. & S. 265. riage, and see that their names and descrip- 
 
 (/) R. v. Wroxton, 4 B. & Ad. 640, 1 N. tions were right, and the witness added that 
 
 & M. 712 ; Gompertz v. Kensit, 41 L. J. she should not have been present at the 
 
 Ch. 382 ; R. v. Kay, 16 Cox C. C. 292. marriage as a witness, unless the banns had 
 
 (g) Wiltshire v. Wiltshire, 3 Hagg. Ecc. been regularly published. 
 R. 332. 
 
 vol. i. — 44
 
 690 Marriage in Wrong Name. [book II. 
 
 One Wood was baptized and had always been known by the name 
 of Bower Wood, and never by the name of John Wood, and his banns 
 were published in the name of John Wood ; after the first publication 
 the wife told Wood that the name John Wood was wrong. He said 
 it was one of his names, though he had never been called by it ; she 
 asked him why he used the name John ? He said it was for fear any 
 of his relations should know of his marrying her. She wished him 
 to use the name of Bower ; he said he should be disinherited if he 
 did ; she asked him if the marriage would be legal under the name of 
 John ; he said it would. It was a long time before she would con- 
 sent to being married to him in the name of John. She did so 
 because he said if she loved him she would marry him in that name, 
 and would trust to him afterwards. On the 12th of April, 1852, they 
 were married in the names of Margaret Midgley and John Wood. 
 Cresswell, J. 0., held that there was not a due publication of banns, 
 as Wood was described in them as John Wood, and both parties were 
 aw T are of this misdescription when the marriage was solemnized, and 
 therefore the marriage was invalid, (i) 
 
 It seems that the assuming a fictitious name, upon the second 
 marriage, will not prevent the offence from being complete. (J) And 
 it was decided to be no ground of defence, that upon the second 
 marriage (which was by banns) the parties passed by false Christian 
 names when the banns were published, and when the marriage took 
 place ; and it was further holden that the prisoner, having written 
 down the names for the publication of the banns, was precluded 
 thereby from saying that the woman was not known by the name he 
 delivered in, and that she was not rightly described by that name in 
 the indictment. The indictment was against the prisoner for marry- 
 ing Anna Timson whilst he had a wife living : the second marriage 
 was by banns ; and, it appeared, that the prisoner wrote the note for 
 the publication of the banns, in which the woman was called Anna, 
 and that she was married by that name, but that her real name was 
 Susannah. Upon a case reserved two questions were made : one, 
 whether this marriage was not void, because there was no publication 
 of banns by the woman's right name, and that, if the second marriage 
 were void, it created no offence : and the other question was, whether 
 the charge of the prisoner's marrying Anna was proved. But the 
 judges held, unanimously, that the second marriage was sufficient 
 to constitute the offence ; and that, after having called the woman 
 ' Anna ' in the note he gave in for the publication of banns, it did not 
 lie in the prisoner's mouth to say, that she was not known as well by 
 the name of Anna as by that of Susannah, or that she was not rightly 
 called by the name of Anna in the indictment, (k) 
 
 So where the prisoner contracted the second marriage in the 
 maiden name of his mother, and the woman he married had also 
 made use of her mother's maiden name, it was unanimously resolved 
 by all the judges that the prisoner was rightly convicted. (I) So 
 
 (0 Midgley v. Wood, 30 Law J., D. (k) R. v. Edwards, MS. Bayley, J., and 
 
 & M. 57. R. & R. 283. 
 
 0') R. v. Allison, post, p. 713. And see {I) Palmer's case, 1 Deae. Dig. Cr. L. 
 
 R. v. Allen, ante, p. 664, and the question 147. Rose. C. E. 280. 
 as to the second marriage there discussed.
 
 chap, xxx.] Of Bigamy. 691 
 
 where the second wife had never gone or been known by the name 
 of Thick, but had assumed it when the banns were published, that 
 her neighbours might not know she was the person intended, it was 
 held that the parties could not be allowed to evade the punishment 
 for their offence, by contracting a concertedly invalid marriage, (m) 
 But where it was proved, by a person present at the prisoner's second 
 marriage, that the woman was married to him by the name of 
 Hannah Wilkinson (the name laid in the indictment), but there was 
 no other proof that the woman was in fact Hannah "Wilkinson ; it 
 was held that the proof was insufficient, and that to make it sufficient 
 there should have been proof that the prisoner was married to a cer- 
 tain woman by the name of, and who called herself H. Wilkinson, 
 whereas, in fact, there was no proof that such was her name, or that 
 she had ever before gone by that name ; and if the banns had been 
 published in a name which was not her own, and which she had 
 never gone by, the marriage would be invalid, (n) 
 
 The prisoner was married a second time before the registrar, 
 describing himself as Benjamin Eea, his true name being Edward 
 Kea. There was no evidence to show the wife knew of this, and the 
 man was held to be rightly convicted of bigamy, as the effect of the 
 statute 6 & 7 Will. 4, c. 85, ss. 4, 42, is to render invalid a marriage 
 where both the parties, and not one only, knowingly intermarry with- 
 out due notice, (o) 
 
 A marriage celebrated under a licence, in which one of the parties 
 is described by a name wholly different from his own, is not therefore 
 void. George Rudman was taken into custody as the reputed father 
 of a child, of which a woman was pregnant, and married her by 
 licence. He gave his name as George Xeate at the times of the ap- 
 prehension and marriage, and was named so in the licence, but had 
 never gone by that name before ; and the Court of Queen's Bench 
 held this marriage valid, (p) 
 
 Where a marriage was solemnized by licence, in which the woman's 
 name was Margaret Bevan ; her baptismal name and that by which 
 she was commonly called being ' Margaret Lea Bevan ' ; the licence 
 was obtained in the altered name by the man, who knowingly, and 
 by direction of the woman, suppressed the name of ' Lea,' and gave 
 false places of residence, in order that the surrogate might not know 
 who the woman was, and that the intended marriage might be kept 
 secret from her friends ; it was held that the question was whether 
 the woman was married without a ' licence from a person or persons 
 having authority to grant the same.' There was no doubt the person 
 who granted the licence had authority to grant it, and it "came there- 
 fore to the question whether this was a licence for the woman. It 
 was clear that an altered name might represent a person ; therefore 
 the name ' Margaret Bevan ' might represent her, and as the licence 
 
 (ni) R. v. Penson, 5 C. & P. 412. Gurney had known of the false statement. See 
 
 B. See R. v. Orgill, 9 C. & P. 80. Holmes v. Simmons, L. R. 1 P. & M. 523. 
 
 (n) Drake's case, 1 Lewin, 25. Parke, (p) Lane v. Goodwin, 4 Q. B. 361. But 
 
 J. No point was suggested as to this being if a licence were obtained for one person 
 
 the second marriage. with the intention that it should be used for 
 
 (o) R. v. Rea, L. R. 1 C. C. R., 41 L. J. another, such a licence might not be valid. 
 
 M. C. 92. The Court did not say there Patteson, J. Ibid, 
 would have been no offence if both parties
 
 692 Marriage of Minor. [book ii. 
 
 was obtained for her and by her direction from a person who had 
 authority to grant it, the marriage was not void, (q) 
 
 On the trial of an ejectment in 1842, a marriage was said to have 
 taken place in August in 1784, at a private house under a special 
 licence from the Archbishop of Canterbury. There was some evi- 
 dence of cohabitation and reception : but the plaintiff's counsel offered 
 in evidence an affidavit made for the purpose of obtaining a special 
 licence to be married at a private house, and a fiat signed by the 
 Archbishop, directing a licence to be made out, as prayed, for a mar- 
 riage between the parties ; both which documents were produced 
 from the Office of Faculties, the proper ecclesiastical office. No 
 search had been made for the original licence ; and there was proof 
 that such licences were not kept in any regular custody, but were 
 generally handed over to the officiating clergyman and not taken 
 back from him. A copy of the register of the parish of St. Pancras, 
 which stated the marriage to have been at a private house, by special 
 licence, and professed to be signed by the parties, was also offered in 
 evidence. Objection was taken to the fiat as being secondary evi- 
 dence of the contents of the licence, for which no search had been 
 made ; but the evidence was admitted ; and the Court of Queen's 
 Bench held that it was properly received, as the fiat was an act done 
 in the course of official duty, showing that two persons bearing the 
 names of the lessor of the plaintiff's parents were at that time 
 engaged in taking measures for contracting a marriage ; and that 
 it might properly be taken into consideration by the jury as con- 
 firming the evidence of their union, which arose from cohabitation 
 and reception. The affidavit and register were proofs of the same 
 general fact, (r) 
 
 A marriage solemnized by licence since the 4 Geo. 4, c. 76, without 
 consent of parents, where one of the parties is a minor, is valid : for 
 the section, which requires such consent, is only directory, (s) The 
 pauper, being under the age of twenty-one years, was married in 
 1826, by licence, without the consent of his father, who was then 
 living ; it was objected that this marriage was void under the 4 Geo. 
 4, c. 76, for want of the father's consent ; but it was held that the 
 marriage was valid. The language of sec. 16 (t) is merely to require 
 consent ; it does not proceed to make the marriage void, if solemnized 
 without consent. Sec. 22 declares that certain marriages shall be 
 null and void, and a marriage by licence without consent is not speci- 
 fied; and if there were any doubt, it is removed by sec. 23, which in 
 
 (q) Bevan v. M'Mahon, 30 Law J., D. & it must be shown on the part of the prose- 
 
 M. 61. cution, that such marriage, if by licence, 
 
 (r) Doe dem. Earl of Egremont v. was with the proper consent. R. v. Butler, 
 
 Grazebrook, 4 Q. B, 406. In the argument Mich. T. 1803. MS. Bayley, J., and R. & 
 
 it is said that 'the performance of a cere- R. 61 ; R. v. Morton, cor. Wilson, J., New- 
 
 mony was proved ;' 'but the ceremony was castle, 1789. MS. Bayley, J., and R. & R 
 
 shown to have been performed in a private 19, note (a). James's case, R. & R. 17. 
 
 house.' ' The same parties went through the Though illegitimate children are regarded by 
 
 ceremony, which, at any rate, was profes- the law as not having any father, yet they 
 
 sedly a marriage.' See Doe dem. France v. were held to be within the marriage Act of 
 
 Andrews, 15 Q. B. 756, as to the entry in 26 Geo. 2 ; R. v. Hodnett, 1 T. R 96 ; R. r. 
 
 the register. Edmonton, Cald. 435 ; Horner v. Liddiard, 
 
 (s) If the prisoner prove that his first Rep. by Dr. Croke ; Priestley v. Hughes, 11 
 
 marriage took place while he was a minor, East, 1. 
 and while the 26 Geo. 2, c. 33, was in force, (t) See the sec. ante, p. 672.
 
 ciiap. xxx.] Of Bigamy. 693 
 
 such a case enacts, not that the marriage shall be void, but that all 
 the property accruing from the marriage shall be forfeited, (u) 
 
 Unless a clergyman in holy orders was present at the marriage 
 ceremony, the marriage was null and void at common law before the 
 marriage Act. Where, therefore, A., a member of the Established 
 Church in Ireland, went, in 1829, accompanied by B., a Presbyterian, 
 to the house of C, a regularly placed minister of the Presbyterians of 
 the parish where C. resided, and there entered into a present contract 
 of marriage with the said B., the minister performing a religious cere- 
 mony between them, according to the rites of the Presbyterian church, 
 and A. and B. lived together as man and wife for some time after- 
 wards ; but A., afterwards during B.'s life, married another person in 
 a parish church in England ; it was held, on an indictment for bigamy, 
 that the first contract thus entered into was not sufficient to support 
 the indictment, (v) 
 
 But the preceding case must not be taken to decide that marriages 
 of British subjects in the colonies, or on board ship or elsewhere, 
 where a clergyman cannot be obtained, are invalid. Indeed in a case 
 in India where no clergyman could be obtained, it was held that the 
 preceding decision did not apply, (w) 
 
 The law does not admit of any difference, as to the manner in 
 which a marriage is to be celebrated, between the marriage of a 
 clergyman and a layman, and consecpiently if the bridegroom be 
 a clergyman in holy orders, and perform the ceremony himself, no 
 other clergyman being present, the marriage is invalid, (x) 
 
 Where, on an indictment for bigamy, it appeared that the first 
 marriage professed to be under the provisions of the 6 & 7 Will. 4, 
 c. 85, and the superintendent registrar produced the register returned 
 to him by the registrar, who proved that he was present at the 
 marriage, that it was registered, that the parties signed their names, 
 and he witnessed it ; and the superintendent registrar produced the 
 register of the place where the marriage was celebrated, and the 
 certificate he issued was produced and proved by him. A witness 
 stated that he was present at the marriage, and that notice of it 
 was duly given to the superintendent registrar, but the latter did not 
 produce it, and said, if he had received it, he had left it at home ; it 
 was contended, on behalf of the prisoner, that it was incumbent on 
 
 (u) R. v. Birmingham, 8 B. & C. 29, held that this judgment was as much bind- 
 
 S. C. 2 M. & R. 230. R. v. Clark, 2 Cox, iug as if it had pronounced nemine dissen- 
 
 C. C. 183. tiente. On the authority of this case, it was 
 
 (v) R. v. Millis, 10 CI. & F. 534. March, held that a marriage solemnized at the con- 
 
 1843. In the Queen's Bench in Ireland, sulate office at Beyrout in Syria, according 
 
 Perrin and Crampton, JJ., held the first to the rites of the Church of England, be- 
 
 marriage good ; but Pennefather, C. J., and tween two British subjects who were 7iiem- 
 
 Burton, J., held it to be void. In order bers of that church, by an American mis- 
 
 that error might be brought in the House of sionary, who was not a priest in holy orders, 
 
 Lords, Perrin, J., withdrew his opinion, and was void. Catherwood v. Caslon, 13 M. & 
 
 judgment was given for the prisoner. In W. 261. 1844. See the 55 & 56 Vic. c. 23, 
 
 the House of Lords, Lords Brougham, Den- post, p. 704 et seq. See R. v. Mainwaring, 26 
 
 man, and Campbell held the first marriage L. J. M. C. 10 ; Dear. & B. 132. 
 
 good; but the Lord Chancellor (Lyndhurst), (w) Maclean v. Cristall, Per. Oriental 
 
 Lord Cottenham, and Lord Abinger held it Cas. 75. And the Lords, in Beamish v. 
 
 void ; whereupon, according to the ancient Beamish, infra, expressly declared that thi> 
 
 rule in the law, semper prccsumitur pro ne- question was not decided by the preceding 
 
 rjctntc, judgment was given for the defendant ; case, 
 
 and in Beamish v. Beamish, infra, it was (a;) Beamish v. Beamish, 9 H. L. C. 274.
 
 694 Proof of Marriage. [book ii. 
 
 the prosecution to show that the first marriage was celebrated in the 
 registered building specified in the notice and certificate, to prove that 
 due notice had been given to the superintendent registrar, and that 
 the certificate of the notice had been duly issued. But, on a case 
 reserved, all the judges present held the evidence sufficient. (//) 
 
 Upon an indictment for bigamy, which alleged that the prisoner, 
 in July, 1848, married Eliza Goodman in a Wesleyan chapel duly 
 licensed for marriages, and afterwards in her lifetime married E. 
 Outley, a witness proved that he was present at the first marriage at 
 the Wesleyan chapel at Dunstable, in the presence of the registrar, 
 and signed the register as a witness, and that the parties lived 
 together as man and wife for two or three years. A witness proved 
 that a certificate of this marriage was examined by him with the 
 register book, kept at the office of the superintendent registrar of the 
 district of Luton, within which Dunstable was, and that it was 
 correct, and that it was signed by the superintendent registrar. This 
 certificate contained a copy of the register, which the registrar certi- 
 fied to be correct. The witness also proved that he examined 
 another certificate with the register book at the office of the superin- 
 tendent registrar, and that it was correctly extracted, and was signed by 
 the superintendent registrar in his presence, (z) The witness also 
 proved that another document was signed in his presence by the 
 superintendent registrar, and that he examined it with the register 
 at his office, and found it was correctly extracted, (a) The reception 
 of these documents was objected to, on the ground that certificates 
 were not admissible to prove a marriage in a Wesleyan chapel, or that 
 it was a place in which a marriage could be legally solemnized, or 
 that, if admissible, they must be authenticated by the official seal of 
 the registrar, and not under hand only. But the documents were 
 admitted, and the prisoner convicted ; and it was held that the con- 
 viction was right, upon the ground that, independently of the two 
 last-mentioned documents, there was prima facie evidence that the 
 chapel was duly registered, and w r as therefore a place in which 
 marriages might be legally solemnized. The presence of the registrar 
 at the marriage, the fact of the ceremony taking place, and the entry 
 in the registrar's book, aided, as they were, by the presumption omnia 
 rite esse acta, afforded prima facie evidence that the chapel was a duly 
 registered place, in which marriages might be legally celebrated, (b) 
 So where on an indictment for bigamy the prisoner was shown to 
 
 (y) R. v. Hawes, 1 Den. C. C. 270. As (a) This document was, ' Henry Man- 
 the production of the original register of waring and Eliza Goodman were married 
 marriages cannot be enforced, a witness, who after notice, read at the Board of Guard- 
 has seen the register, may prove the hand- ians of the Luton Union, without licence. 
 writing of a party to a marriage therein Thos. Erskine Austin, Superintendent Re- 
 registered, although such register be not gistrar.' 
 produced. Sayer v. Glossop, 2 Exc. K. 409. (b) R. v. Man waring, D. & B. C. C. 132; 
 
 (z) Tins certificate was, ' I, the nnder- Pollock, C. B., and Willes, J., thought that 
 
 signed, T. E. Austin, Superintendent Reg- the certificate that the chapel had been duly 
 
 istrar of the district of Luton, &c. do hereby registered was admissible and evidence of 
 
 certify that the Wesleyan chapel', situate at the fact. The 6 & 7 Will. 4, cc. 85, 86 ; 1 
 
 Dunstable, in the county of Bedford, was Vict. c. 22 ; 3 & 4 Vict. c. 92 ; 8 & 9 Vict, 
 
 duly registered for the solemnization of mar- c. 113 ; 9 & 10 Vict. c. 119 ; and 14 & 15 
 
 riages, pursuant to the Act 6 & 7 Will. 4, Vict. c. 99, were referred to on the trial, 
 
 c. 85, on the twenty-eighth day of Novem- Willes, J., said, ' It is a mistake to suppose 
 
 her, 1845. Given under my hand, &c, Thos. that the provisions of the 14 & 15 Vict. c. 99, 
 
 Erskine Austin.' s. 14, are anything more than cumulative, or
 
 chap, xxx.] Of Bigamy. 695 
 
 have been secondly married at a Wesleyan chapel not registered 
 under the 15 & 16 Vict. c. 36, in June 1857, and this marriage was 
 proved by the registrar, who produced the certificate ; it was objected 
 that there was no proof of the second marriage, or that it was 
 invalid, having taken place in an unlicensed chapel ; but Wightman, 
 J., overruled the objections, (c) 
 
 A marriage celebrated by banns, in a chapel erected after the 26 
 Geo. 2, c. 33, was passed, and not upon the site of any ancient church 
 or chapel, was held to be void, although marriages had been cle facto 
 frequently celebrated there ; the words of the statute ' in which chapel 
 banns have been usually published' being held clearly to mean 
 chapels existing at the time it was passed, (d) But as soon as this 
 determination was known, the 21 Geo. 3, c. 53, was passed, making 
 valid all marriages which had been celebrated in any parish church 
 or public chapel, erected since the passing of the 26 Geo. 2, c. 33, and 
 consecrated, and providing that the registers of such marriages should 
 be received as evidence. The fourth section enacted, that the regis- 
 ters of marriages thereby made valid should, within twenty days 
 after the 1st of August, 1781, be removed to the church of the parish 
 in which such chapel should be situated ; or, if it should be situated 
 in an extra-parochial place, to the parish church next adjoining, to 
 be kept with the registers of such parish. These provisions were 
 extended by the 44 Geo. 3, c. 77, and the 48 Geo. 3, c. 127, to mar- 
 riages celebrated in such chapels before the 23rd August, 1808 ; and 
 the registers of such marriages are in like manner to be removed to 
 parish churches, and transmitted to the bishop. The 6 Geo. 4, 
 •c, 92, recites, that since the 26 Geo. 2, c. 33, and the 44 Geo. 
 3, c. 77, divers churches and chapels had been erected in Eng- 
 
 that they give a rale and the only rule of a case. Sichel v. Lambert, 15 C. B. (N. S.) 
 
 evidence.' See R. v. Craddock, 3 F. & F. 781. Where a marriage was solemnized in 
 
 837. Where in an action for goods sold a building in a parish situate a few yards 
 
 there was a plea of coverture, and the de- from the parish church, at a time when the 
 
 fendant stated that she was married to J. parish church was disused in consequence of 
 
 Lambert in 1844, at a Roman Catholic its undergoing repairs, and after divine ser- 
 
 chapel in George Street, Porfcman Square ; vice had been several times performed in 
 
 that she and Lambert were both Roman such building, in the absence of any proof 
 
 Catholics, and were married by a priest that the building was licensed by the bishop, 
 
 in the way in which Roman Catholic mar- it was presumed in favour of the marriage, to 
 
 riages are ordinarily celebrated, and that have been duly licensed. R. v. Cresswell, 
 
 they lived together for some years, and she 1 Q. B. D. 446 ; 45 L. J. M. C. 77 ; 13 Cox, 
 
 produced a certificate of the marriage from C. C. 126, et per Lord Coleridge, C. J. ' We 
 
 the priest who performed the ceremony, and are of opinion that the marriage service hav- 
 
 a certificate showing that the civil contract ing been performed in the place where 
 
 of marriage had been performed before the divine service was several times performed, 
 
 French Consul ; but there was no proof that the rule "omnia prcesumunlur rite acta" 
 
 the person who performed the ceremony was applies, and that we must assume that the 
 
 a priest, or that the chapel was a place place was properly licensed, and that the 
 
 licensed for marriages, or that the registrar clergyman performing the service was not 
 
 was present at the time ; the Court of Com- guilty of the grave offence of marrying 
 
 mon Pleas held that it might be presumed persons in an unlicensed place. The facts 
 
 that the chapel was licensed and the re- of the marriage and other church services 
 
 gistrar present, as well because the 6 & 7 being performed there by a clergyman are 
 
 Will. 4, c. 85, s. 39, declares, any person abundant evidence from which the court and 
 
 who wilfully solemnizes a marriage in any a jury might assume that the place was 
 
 other place than a registered building or in properly licensed for the celebration of 
 
 the absence of the registrar, guilty of felony, marriages.' 
 
 as because the ordinary rule omnia praisum- (c) R. v. Tilson, 1 F. & F. 54. 
 
 untur rite esse acta ought to prevail in such {d) R. v. Northfield, Dougl. 659.
 
 696 Marriages in District Churches. [book ii. 
 
 land, "Wales, and Berwick-upon-Tweed, which had been duly con- 
 secrated, and divers marriages had been solemnized therein since 
 the passing of the 44 Geo. 3, c. 77 ; but by reason that in such 
 churches and chapels banns of matrimony had not usually been 
 published, before or at the time of passing the 26 Geo. 2, c. 33, nor 
 any authority obtained for solemnizing marriages therein, under the 
 provisions of the 4 Geo. 4, c. 76, such marriages had been or might 
 be deemed to be void ; and then enacts, that all marriages already 
 solemnized in any church or public chapel in England, Wales, and 
 Berwick-upon-Tweed, erected since the 26 Geo. 2, c. 33, and conse- 
 crated, shall be as good and valid in law as if such marriages had 
 been solemnized in parish churches or public chapels, having chapel- 
 ries annexed, and wherein banns had usually been published before 
 or at the time of passing the 26 Geo. 2. By sec. 2, it shall be law- 
 ful for marriages to be in future solemnized in all churches and 
 chapels erected since the 26 Geo. 2, c. 33, and consecrated, ' in which 
 churches and chapels it has been customary and usual, before the pass- 
 ing of this Act, to solemnize marriages ;' and that all marriages here- 
 inafter (e) solemnized therein shall be as good and valid as if they 
 had been solemnized in parish churches, &c, wherein banns had 
 usually been published before or at the time of passing the 26 
 Geo. 2. And the registers of marriages solemnized in the churches or 
 chapels, by the 6 Geo. 4, enacted to be valid in law, or copies thereof, 
 are to be received as evidence, in the same manner as the registers 
 of marriages in parish churches, &c, in which banns were usually 
 published before or at the time "of the 26 Geo. 2, c. 33, or copies 
 thereof, are received ; but liable to the same objections as would be 
 available to exclude the latter from being received. (/) But such 
 registers of marriages, solemnized in any public chapel, and made 
 valid by the 6 Geo. 4, c. 92, are, within three months from the passing 
 of the Act, to be removed to the parish church of the parish in which 
 such chapel is situated ; and if it be situated in an extra-parochial 
 place, then to the parish church next adjoining, to be kept with the 
 marriage registers of such parish, and in like manner as parish 
 registers are directed to be kept by the 26 Geo. 2. (g) 
 
 Where a marriage was solemnized in a chapel, before the 6 Geo. 
 4, c. 92, there must be some evidence given that banns were usually 
 published there before the passing of the 26 Geo. 2, c. 33 ; but it 
 was prima facie sufficient for that purpose to produce an old register 
 of marriages solemnized in the chapel before that Act, and a regular 
 register of banns published there since, and to prove that within the 
 recollection of witnesses banns had been published and marriages 
 solemnized in it from time to time of late years, (h) But where on 
 an indictment for bigamy it appeared that the first marriage was 
 celebrated at the chapel of Great Barr, which was a chapel in the 
 parish of Aldridge, in the year 1843, and that marriages had been 
 solemnized there for the last twenty years, but no register was pro- 
 duced, nor any further evidence given as to the celebration of mar- 
 
 (e) Sic, it should be 'hereafter.' 297. This case was tried in 1809, after the 
 
 (f) 6 Geo. 4, c. 92, s. 3. passing of the 26 Geo. 3, and before the- 
 {g) Id. sec. 4. 6 Geo. 4, c. 92. 
 
 (A) Taunton v. Wyvorn, 2 Campb. R.
 
 chap, xxx.] Of Bigamy. 697 
 
 riages or publication of banns there; Piatt, B., held the evidence 
 insufficient, as it was necessary to show either that the chapel was one 
 in which banns had been usually published before the 26 Geo. 3, c. 
 33, or that the chapel was built and consecrated after that Act, and 
 before the 6 Geo. 4, c. 92. (i) 
 
 By the 6 & 7 Vict. c. 37, s. 15, an Act to make better provision 
 for the spiritual care of populous parishes, where any church or 
 chapel has been consecrated as the church or chapel of any district 
 constituted under the Act, such district is to be a new parish for 
 ecclesiastical purposes, and ' it shall be lawful to publish banns of 
 matrimony in such church, and according to the laws and canons 
 in force in this realm to solemnize therein marriages ; ' and the 
 several laws relating to the publication of banns and the perform- 
 ance of marriages and the registering thereof, shall apply to the 
 church of such new parish, and to the perpetual curate thereof. And 
 by the 8 & 9 Vict. c. 70, s. 10, an Act for amending the Church 
 building Acts, banns of marriage may be published and marriages 
 performed in the church of every consolidated chapelry formed in 
 the manner therein mentioned. 
 
 The 7 & 8 Vict. c. 56, s. 3, reciting that by error banns have been 
 published and marriages solemnized in chapels with districts assigned 
 to them under the 59 Geo. 3, c. 134, 1 & 2 Will. 4, c. 38, 1 & 2 Vict, 
 c. 107, and 3 & 4 Vict. c. 60, or some of them, but in which chapels 
 banns could not be legally published nor marriages by law be solem- 
 nized, enacts that ' banns already (29th July, 1844) published and 
 marriages already solemnized in such chapels as aforesaid shall not 
 hereafter be questioned on account of the said banns having been 
 published, or the said marriages solemnized in any such chapel as 
 aforesaid, and the registers of all marriages so solemnized as aforesaid, 
 or copies of such registers, shall be received in all courts of law and 
 equity as evidence of such marriages respectively.' (J) 
 
 The 14 & 15 Vict. c. 97, s. 25, (k) enacts that, where by error and 
 
 (i) R. v. Bowen, 2 C. & K. 227, tried to be conclusive evidence in all courts, and 
 March 18, 1846. The 6 Geo. 4, c. 92, in all questions relating to any banns pub- 
 received the Royal Assent 5th July, 1825. lished or marriages solemnized in any such 
 
 (j) Sec. 1 provides that where a dis- church or chapel, that the same might 
 trict has been or shall be assigned to any according to law respectively be published 
 church or chapel under the 3 & 4 Vict. and solemnized in such church or chapel, 
 c. 60, the Church Building Commissioners and that all banns published and marriages 
 or the bishop may determine as to banns solemnized in any such church or chapel 
 and marriages in any such church or chapel ; according to the laws and canons in force 
 and sec. 2 enacts that when and so soon as within this realm in that behalf shall, after 
 it shall be determined that banns of mat- the granting of such certificate, be good to 
 riinony may be published and marriages all intents and purposes whatsoever : prov- 
 solemnized in any such church or chapel, ided always, that no banns or marriages 
 the bishop of the diocese within which respectively published or solemnized accord- 
 such church or chapel shall be locally ing to the laws and canons in force within 
 situated, whether in any parish or extra- the realm in that behalf in any church or 
 parochial place, or otherwise, shall certify chapel in which the same are authorized to 
 the same, and such certificate shall be be respectively published, solemnized, and 
 kept in the chest of the church or chapel had by the said recited Acts or this Act, or 
 with the books of registry thereof, and a either of them, shall be invalid by reason 
 copy thereof shall be entered in the books of any such certificate not having been duly 
 of the registry of Banns and Marriages, given, or registered or entered, as herein- 
 and a duplicate of such certificate shall be before required, 
 registered in the registry of the diocese, and (k) See 38 & 39 Vict. c. 66. 
 such certificate, shall be deemed and taken
 
 098 Marriages in Scotland. [book ii. 
 
 without fraud banns had been published or marriages solemnized, in 
 the church of any parish or district in which they could not lawfully 
 be published or solemnized, the banns already (7th August, 1851) 
 published and marriages already solemnized, shall not be questioned 
 by reason thereof, except where some suit was pending. 
 
 The 24 & 25 Vict. c. 16, s. 4, renders valid all banns published 
 and all marriages solemnized before the 17th of May, 1861, in churches 
 and chapels which had been duly consecrated, but in which banns 
 could not legally be published nor marriages by law be solemnized ; 
 but the Act is not prospective. (/) 
 
 The 18 & 19 Vict. c. 81, s. 13, renders valid marriages had before 
 the 30th July, 1855, in any building registered under the 6 & 7 Will. 
 4, c. 85, but not certified as required by any Act. 
 
 The 4 Geo. 4, c. 76, and 6 & 7 Will. 4, c. 85, only extend to that 
 part of the United Kingdom called England, (m) With respect to mar- 
 riages in Scotland, though the point was formerly much doubted, {n) 
 it appears to have been afterwards settled that where minors 
 domiciled in England withdrew themselves into Scotland, or places 
 beyond the seas, for the purpose of evading the Marriage Act, their 
 marriage under such circumstances was nevertheless valid, (o) In one 
 case, a writer to the signet proved that, according to the law of Scot- 
 land, marriage is a civil contract solemnly and deliberately entered 
 into, and as if the parties had a serious intention of living together 
 as man and wife. The assent of both parties must, therefore, be very 
 distinctly and clearly proved to have been given, in order to render 
 the contract a valid one. It is not necessary to the validity of such 
 contract, that the parties should afterwards live together as man and 
 wife ; but the fact of their afterwards living together as man and wife 
 will operate to explain ambiguous words, if there be such, in the con- 
 tract itself, (j)) Where, therefore, the second marriage took place at 
 Gretna Green, and upon the whole evidence the assent of the second 
 wife was not ' distinctly and clearly proved,' and, though the parties 
 had lived together afterwards, the evidence tended rather to show 
 that they were living together in a state of concubinage, inasmuch 
 as the prisoner still continued to address her by her maiden name, 
 Alderson, B., directed the jury to find the prisoner not guilty, (q) 
 And where, on an indictment for bigamy, to prove the second marriage 
 in Scotland, a witness stated that she (being the sister of the second 
 wife) was present at a ceremony performed by a minister of a con- 
 
 (7) The Act also indemnifies ministers 113 ; and see the opinion of Eyre, C. J., 
 win) had solemnized any marriages in such in reasoning upon the case of Phillips v. 
 churches and chapels, and makes the regis- Hunter, 2 H. Bl. 412. And in llderton 
 ters and copies of them admissible in evi- v. llderton, 2 H. Bl. 145, it was taken to 
 dence. Marriages in chapels, erected and be clear that a marriage, celebrated in Scot- 
 consecrated since 26 Geo. 2, c. 33, were land, is such a marriage as would entitle 
 rendered valid by various other retrospective the woman to her dower in England, 
 statutes; see 21 Geo. 3, c. 53; 44 Geo. 3, (/j) See De Thoren v. Att.-Gen., 1 Ap. 
 c. 77 ; 48 Geo. 3, c. 127 ; and see 6 Geo. 4, Cas. 686. Dysart Peerage Case, 6 Ap. Cas. 
 c. 92, noticed ante, p. 695. 489. 
 
 (m) See ante, pp. 668, 674. (q) Graham's case, 2 Lew. 97. In the 
 
 (n) See Burn's Just. tit. Marriage, and same case the same learned judge refused 
 
 the observations of Lord Mansfield in Rob- to admit the certificate as evidence of the 
 
 insou v. Bland, 2 Burr. 1079. marriage. 
 
 (o) Crompton v. Bearcroft, Bull. X. P.
 
 €iiap. xxx.] Of Bigamy. 699 
 
 gregation, but whether of the Kirk she did not know, in her private 
 house in Edinburgh ; that she herself was married in the same way, 
 and that parties were always married in Scotland in private houses ; 
 that the prisoner and her sister lived together in her house as man 
 and wife for a few days after the ceremony ; and the jury found the 
 prisoner guilty ; upon the question being reserved whether the evidence 
 was sufficient to justify the verdict, or whether some witness, conver- 
 sant with the law of Scotland, should not have been called upon to 
 say whether the facts proved constituted a valid marriage according 
 to that law ; it was held that some such witness ought to have been 
 called, and that, even supposing that the witness had been a competent 
 witness for such a matter, her evidence did not prove a marriage in 
 fact. (?') 
 
 By the 19 & 20 Vict. c. 96, s. 1, 'After the 31st of December 
 1856, no irregular marriage contracted in Scotland by declaration, 
 acknowledgment, or ceremony, shall be valid, unless one of the 
 parties had at the date thereof his or her usual place of residence 
 there, or had lived in Scotland for twenty-one days next preceding 
 such marriage ; any law, custom or usage to the contrary notwith- 
 standing.' 
 
 By the Marriages Validity Act, 1886, (49 Vict. 3), ' No marriage 
 solemnized or hereafter to be solemnized in any church in England 
 after publication of banns in such church shall be or be deemed to 
 have been invalid by reason only that one of the parties to such mar- 
 riage was at the time of such publication, resident in Scotland, and 
 that banns may have been published or proclaimed in any church of 
 the parish or place in which such party was resident, according to the 
 law or custom prevailing in Scotland, and not in the manner required 
 for the publication of banns in England.' 
 
 Where a soldier on service with the British army in St. Domingo, 
 in 1796, being desirous of marrying the widow of another soldier who 
 had died there in the service, the parties went to a chapel in the 
 town, and the ceremony was there performed by a person appearing 
 and officiating as a priest ; the service being in Erench, but inter- 
 preted into English by a person who officiated as clerk, and under- 
 stood at the time by the woman to be the marriage service of the 
 Church of England. This was held sufficient evidence, after eleven 
 years' cohabitation, that the marriage was properly celebrated, 
 although the woman stated that she did not know that the person 
 officiating was a priest. Lord Ellenborough, C. J., in delivering his 
 opinion, considered the case, first, as a marriage celebrated in a place 
 where the law of England prevailed (supposing, in the absence of any 
 evidence to the contrary, that the law of England, ecclesiastical and 
 civil, was recognized by subjects of England in a place occupied by 
 the king's troops, who would impliedly carry that law with them) 
 
 (r) R. v. Povey, Dears. C. C. 32. 22 and R. v. Griffin, 14 Cox C. C. 308, ante, 
 
 L. J. M. C. 19. The Court said that the p. 664. See Lapsley v. Grierson, 1 H. L. C. 
 
 Sussex Peerage Case, 11 01. & F. 85, had 498, that illicit cohabitation in Scotland 
 
 settled the point that a person not pcritits begun in the lifetime of a husband, and 
 
 virtute officii or virtute professionis, was in- continued after his death, continues to bear 
 
 admissible to prove the law of a foreign an illicit character, unless there be a clear 
 
 country, and had overruled R. v. Dent, 1 C. change in its character after the death of 
 
 & K. 97 ; as to this see Vol. III., Evidence, the husband is known to the parties.
 
 700 Marriages in Ireland. [book ii. 
 
 and held that it would be a good marriage by that law : for it would 
 have been a good marriage in this country before the Marriage Act, 
 and consequently would be so now in a foreign colony, to which that 
 Act does not extend. In the second place, he considered it upon the 
 supposition that the law of England had not been carried to St. 
 Domingo by the king's forces, nor was obligatory upon them in this 
 particular ; and held that the facts stated would lie evidence of a good 
 marriage according to the law of that country, whatever it might be ; 
 and that upon such facts every presumption was to be made in favour 
 of the validity of the marriage, (s) 
 
 Where (before the 7 & 8 Vict. c. 81, post, p. 701) a person was 
 married at her father's house, in Ireland, in 1799, in the presence of 
 the friends of both families, by a clergyman of the Church of England, 
 who had been curate of the parish for eighteen years ; the parish 
 church was standing, but persons of respectability were usually mar- 
 ried at their own houses ; the parties lived together for several years 
 following as man and wife. Upon objection to the validity of this 
 marriage, Best, C. J., said, ' I know of no law which says that celebra- 
 tion in a church is essential to the validity of a marriage in Ireland. 
 The English Marriage Act does not apply, and I am aware of no Irish 
 law which takes marriages performed in that country out of the rules 
 which prevailed in this before the passing of that Act,' Dalrymple v. 
 Dalrymple (t) has placed it beyond a doubt that a marriage so cele- 
 brated as this has been would have been held valid in this country 
 before the existence of that statute, (u) So where in support of a 
 plea of coverture it was proved that Mrs. Quicke married Mr. Quicke 
 at the house of the Rev. F. M'Guire, near Dublin, in 1842, and Mr. 
 M'Guire's widow produced his letters of orders showing that he had 
 been ordained deacon and priest by bishops of the Established Church, 
 and also proved that when persons were married at their house, her 
 husband always made an entry in a register book, which she pro- 
 duced, and also gave a certificate of the marriage to the persons mar- 
 ried ; and the register contained an entry of the marriage of Mr. and 
 Mrs. Quicke, and Mrs. Quicke proved that she married Mr. Quicke as 
 before mentioned, and produced the certificate given to her by Mr. 
 M'Guire ; Parke, B., held that the certificate was admissible as a part 
 of the transaction ; but not the register ; and that the marriage was 
 valid ; for although it was not celebrated in a church, it was a valid 
 marriage at common law before the 7 & 8 Vict. c. 81. (r) 
 
 "Where a woman, being a Roman Catholic, and a man, being a 
 Protestant, went in 1826 before Mr. Wood, a clergyman residing in 
 Dublin, who, in his private house, read to them the marriage service, 
 and in the course of it asked her whether she would be the wife of 
 the man, and asked him whether he would be her husband, to which 
 question both of them answered, ' I will ; ' Wood was reputed to be a 
 clergyman of the Established Church, and a document purporting to 
 be letters of orders signed and sealed by the late Archbishop of Tuam, 
 dated in 1799, whereby the archbishop certified that he had ordained 
 
 (.9) R. v. Brampton, 10 East, 282. See (u) Smith v. Maxwell, R. & M. X. P. 
 
 also as to Ceylon law, Aronegary v. Yaigalie, R. 80. 
 6 Ap. Cas. 364. (v) Stockbridge v. Quicke, 3 C. & K. 
 
 (0 2 Hagg. 54. 305.
 
 chap, xxx.] Of Bigamy. 701 
 
 Wood a priest, and which letters were found among Wood's papers at 
 the time of his death in July 1829, was admitted without proof of 
 the handwriting or seal of the archbishop as being more than thirty 
 years old. It was held that this document was properly received in 
 evidence, being above thirty years old : if it had been only signed 
 there could have been no question as to its admissibility, but it was, 
 in fact, also sealed ; but although an archbishop is a corporation sole 
 for many purposes, yet such a certificate has no relation to his corpo- 
 rate character, and the seal must be considered as the seal of the 
 natural person, and not of the corporation ; and consequently that 
 there was sufficient evidence of the marriage, (w) 
 
 In a case before the 7 & 8 Vict. c. 81, infra, at the Old 
 Bailey, a question was made, whether a marriage of a dissenter in 
 Ireland, when performed by a dissenting minister in a private room, 
 was valid. It was contended, on behalf of the prisoner, who was 
 indicted for bigamy, that the marriage was illegal from the clandes- 
 tine manner in which it was celebrated ; and several Irish statutes 
 were cited, from which it was argued that the marriage of dissenters 
 in Ireland ought at least to be in the face of the congregation, and 
 not in a private room. But the recorder is said to have been clearly 
 of opinion that this marriage was valid, on the ground that as, before 
 the Marriage Act, a marriage might have been celebrated in England 
 in a house, and it was only made necessary, by the enactment of 
 positive law, to celebrate it in a church, some law should be shown 
 requiring dissenters to be married in a church, or in the face of the 
 congregation, in Ireland, before this marriage could be pronounced to 
 be illegal: whereas one of the Irish statutes, 21 & 22 Geo. 3, c. 25, (z) 
 enacted, that all marriages between Protestant dissenters, celebrated 
 by a Protestant dissenting teacher, should be good, without saying at 
 what place they should be celebrated, (y) 
 
 The 7 & 8 Vict. c. 81, (z) amends the law of marriages in Ireland. 
 Under this Act under certain circumstances a marriage may be 
 solemnized in certain registered places of public worship and before 
 a registrar. 
 
 Sec. 4 provides that marriages between parties, both or either of 
 
 (w) R. v. Bathwick, 2 B. & Ad. 639. & 4 Will. 4, c. 103, which repeals the penal 
 
 (x) And see 11 Geo. 2, c. 1 (now re- enactments made by 6 Ann. (I.), 12 Geo. 1 
 
 pealed). By 32 Geo. 3, c. 21, s. 12, Protest- (I.), 23 Geo. 2 (I.), 12 Geo. 3 (I.), 33 
 
 ants may be married to Roman Catholics by Geo. 3 (I.), against Catholic clergymen 
 
 clergymen of the Established Church ; but celebrating marriages between Protestants 
 
 sec. 13 contains a proviso that the Act shall in Ireland, and see now the 33 & 34 Vict, 
 
 not authorise Protestant dissenting minis- c. 110, s. 39 (Irish, ) post, p. 703. 
 
 ters or Popish priests to celebrate marriage (y) R. v. , Old Bailey, Jan. Sess. 
 
 between Protestants of the Established 1815, cor. Sir J. Silvester, Recorder. MS. 
 
 Church and Roman Catholics. The clause, The prisoner was an officer in the army ; 
 
 however, does not enact that such a mar- and his first marriage upon which this 
 
 riage celebrated by a Protestant dissenting question was raised, took place in 1787, at 
 
 teacher shall be void. Such a marriage, Londonderry. The second marriage was 
 
 celebrated by a Popish priest, would have celebrated in London according to the 
 
 been void by 19 Geo. 2, c. 13 (Irish): and ceremonies of the Church of England. 
 
 the 33 Geo. 3, c. 21, s. 12, only authorises (z) This Act was passed 9th August, 
 
 Popish priests to celebrate marriage between 1844, and is amended by 9 & 10 Vict. c. 72, 
 
 a Protestant and a Papist, where such 26 & 27 Vict. c. 27, 33 & 34 Vict. c. 110, 
 
 Protestant and Papist have been first mar- 34 & 35 Vict. c. 49, 36 Vict. c. 16, 37 & 38 
 
 ried by a Protestant clergyman. See the 3 Vict. c. 96. See 26 & 27 Vict. c. 90.
 
 702 Marriages in Ireland. [book ii. 
 
 whom are Presbyterians, may be solemnized, according to the forms- 
 used by Presbyterians, in certified meeting-houses, (a) 
 
 Sect. 32. 'And be it enacted, that after any marriage shall have 
 been solemnized it shall not be necessary in support of such marriage 
 t< » give any proof of the actual dwelling of either of the parties previ- 
 ous to the marriage, within the district or presbytery (as the case 
 may be), wherein such marriage was solemnized, for the time required 
 by this Act, or of the consent of any person whose consent thereunto 
 is required by law ; and where a marriage shall have been solemnized 
 in a certified Presbyterian meeting-house, it shall not be necessary to 
 prove that either of the parties was a Presbyterian, or, if the marriage 
 was by licence, that the certificate required to be delivered to the 
 minister granting such licence had been so delivered, or, where the 
 marriage was by banns, that a certificate of the publication of banns 
 had been produced to the minister by whom the marriage was solem- 
 nized, in cases where such production is required by this Act ; nor 
 shall any evidence be given to prove the contrary of any of these 
 several particulars in any suit touching the validity of such marriage, 
 or in which such marriage shall be questioned.' 
 
 Sec. 49. ' And be it enacted, that except in the case of marriages 
 by Roman Catholic priests, which may now be lawfully celebrated, 
 if any person shall knowingly and wilfully intermarry after the said 
 thirty-first day of March, in any place other than the church or 
 chapel or certified Presbyterian meeting-house, in which banns of 
 matrimony between the parties shall have been duly and lawfully 
 published, or specified in the licence, where the marriage is by licence, 
 or the church, chapel, registered building or office, specified in the 
 notice and registrar's certificate or licence as aforesaid, or without due 
 notice to the registrar, or without certificate of notice duly issued, or 
 without licence from the registrar, in case such notice or licence is 
 necessary under this Act, or in the absence of a registrar where the 
 presence of a registrar is necessary under this Act, or if any person 
 shall knowingly or wilfully, after the said thirty-first day of March, 
 intermarry in any certified Presbyterian meeting-house without pub- 
 lication of banns, or any licence, the marriage of all such persons, 
 except in any case hereinbefore excepted, shall be null and void.' 
 
 The 33 & 34 Vict. c. 110 (amended by 34 & 35 Vict. c. 49), also 
 amends the law relating to marriages in Ireland. This Act contains 
 provisions as to the churches in which marriages may be celebrated, 
 and as to licences for marriages. 
 
 By sec. 38, a marriage may, notwithstanding anything to the con- 
 trary hereinbefore in this Act contained, be lawfully solemnized by a 
 
 («) We have seen that a marriage before similar marriages after the passing of the 
 this Act by a Presbyterian minister in preceding Act, and before the passing of 
 Ireland was held void." R. v. Millis, ante, that Act, 28th July, 1843, valid. And the 
 p. 693. But the 5 & 6 Vict. c. 113, s. 1, 7 & 8 Vict. c. 81, s. 83, contains a similar 
 renders all marriages celebrated in Ireland provision as to such marriages between the 
 before the 12th August, 1842, by Pres- passing of the preceding Act and that Act. 
 byterian or other Protestant ministers or Sec. 2 of 5 & 6 Vict. c. 113, excepts mar- 
 teachers, or those who at the time of such riages previously adjudged invalid; marriages 
 marriages had been such, of the same force where either of the parties had contracted 
 as if they had been celebrated by clergymen another lawful marriage ; and marriages 
 of the "united Church of England and respecting which prosecutions were pending. 
 Ireland. The 6 & 7 Vict. c. 39, renders all when the Act passed, 12th August, 1842.
 
 chap, xxx.] Of Bigamy. 703 
 
 Protestant Episcopalian clergyman between a person who is a Protes- 
 tant Episcopalian and a person who is not a Protestant Episcopalian, 
 and by a Roman Catholic clergyman between a person who is a 
 Eoman Catholic and a person who is not a Roman Catholic, provided 
 the following conditions are complied with : — 
 
 1st. That such notice is given to the registrar, and such certi- 
 ficate is issued as at the time of the passing of this Act is 
 required by the 7 & 8 Vict. c. 81, as amended by the 26 
 Vict. c. 27, in every case of marriage intended to be solem- 
 nized in Ireland according to the rites of the united Church 
 of England and Ireland, with the exception of marriages 
 by licence or special licence, or after publication of banns. 
 2nd. That the certificate of the registrar is delivered to the 
 clergyman solemnizing such marriage at the time of the 
 solemnization of the marriage. 
 3rd. That such marriage is solemnized in a building set apart for 
 the celebration of divine service, according to the rites and 
 ceremonies of the religion of the clergyman solemnizing 
 such marriage, and situate in the district of the registrar by 
 whom the certificate is issued. 
 4th. With open doors. 
 
 5th. That such marriage is solemnized between the hours of 
 eight in the forenoon and two in the afternoon, in the pres- 
 ence of two or more credible witnesses. 
 Sec. 39. ' There shall be repealed so much of an Act of the Parlia- 
 ment of Ireland, passed in the nineteenth year of the reign of King 
 George the second, chapter thirteen, as provides that a marriage be- 
 tween a Papist and any person who hath been or hath professed him- 
 self or herself to be a Protestant at any time within twelve months 
 before such celebration of marriage, if celebrated by a Popish priest, 
 is to be void ; but any marriage solemnized by a Protestant Episcopa- 
 lian clergyman, between a person who is a Protestant Episcopalian 
 and a person who is not a Protestant Episcopalian, or by a Roman 
 Catholic clergyman between a person who is a Roman Catholic and a 
 person who is not a Roman Catholic, shall be void to all intents in 
 cases where the parties to such marriage knowingly and wilfully 
 intermarried without due notice to the registrar, or without certificate 
 of notice duly issued, or without the presence of two or more credible 
 witnesses, or in a building not set apart for the celebration of divine 
 service, according to the rites and ceremonies of the religion of the 
 clergyman solemnizing such marriage.' 
 
 By 34 & 35 Vict. c. 49, s. 27, whenever a licence for the marriage 
 of a Roman Catholic with a person not a Roman Catholic shall have 
 been issued, pursuant to ss. 25 or 26 of this Act, such marriage may 
 lawfully be solemnized by a Roman Catholic clergyman between such 
 persons, (b) 
 
 A marriage by licence, in Ireland, where one of the parties was 
 under age at the time, and there was no consent of the father, was 
 
 (V) Before these Acts a marriage cele- 109 ; R. o. Orgill, 9 C. & P. 80 ; Swift v. 
 
 brated in Ireland between a Roman Catholic Swift, 3 Knapp, 303 ; Yelverton v. Yelver- 
 
 and a Protestant by a Roman Catholic ton, House of Lords, per Lord Wensleydale. 
 priest was void. Sunderland's case, 1 Lew.
 
 704 Foreign Marriage Act. [book ii. 
 
 not absolutely void, but only voidable within one year, under the 9 
 Geo. 2, c. 11, and if no proceedings were taken within the year to 
 avoid the marriage, it was binding, and the party, if he married again 
 (during the life of his wife) might be properly convicted of bigamy, (c) 
 
 A marriage, however, celebrated by a Roman Catholic priest be- 
 tween two Protestants is still illegal, and renders the person celebrat- 
 ing it liable to be indicted for felony, (d) 
 
 By the 42 & 43 Vict. c. 29, s. 2, 'All marriages, both of the parties 
 being British subjects, which before the passing of this Act have been 
 solemnized on board one of Her Majesty's vessels on a foreign station, 
 in the presence of the officer commanding such vessel, whether 
 solemnized according to any religious rite or ceremony, or contracted 
 per verba de presenti shall be valid in like manner as if the same had 
 been solemnized within Her Majesty's dominions with the due observ- 
 ance of all forms required by law ; provided that this enactment shall 
 not render valid any marriage which before the passing of this Act 
 has been declared invalid by any court of competent jurisdiction in 
 any proceeding touching such marriage, or any right dependent on 
 the validity or invalidity thereof, or render valid any marriage where 
 either of the parties has before the passing of this Act and during 
 the life of the other party lawfully intermarried with any person.' 
 
 By the Foreign Marriage Act 1892, 55 & 56 Vict. c. 23,— 
 
 All marriages between parties of whom one at least is a British sub- 
 ject solemnized in the manner in this Act provided in any foreign 
 country or place by or before a marriage officer within the meaning of 
 this Act, shall be as valid in law as if the same had been solemnized 
 in the United Kingdom with a due observance of all forms required 
 by law. 
 
 2. In every case of a marriage intended to be solemnized under 
 this Act, one of the parties intending marriage shall sign a notice, 
 stating the name, surname, profession, condition, and residence of each 
 of the parties, and whether each of the parties is or is not a minor, and 
 give the notice to the marriage officer within whose district both of 
 the parties have had their residence not less than one week then next 
 preceding, and the notice shall state that they have so resided. 
 
 3. — (1) The marriage officer shall file every such notice, and 
 keep it with the archives of his office, and shall also, on payment of 
 the proper fee, forthwith enter in a book of notices to be kept by him 
 for the purpose, and post up in some conspicuous place in his office 
 a true copy of every such notice, and shall keep the same so posted 
 up during fourteen consecutive days before the marriage is solemnized 
 under the notice. 
 
 (2) The said book and copy posted up shall be open at all reason- 
 able times, without fee, to the inspection of any person. 
 
 4. — (1.) The like consent shall be required to a marriage under 
 this Act as is required by law to marriages solemnized in England. 
 
 (2.) Every person whose consent to a marriage is so required may, 
 at any time before the solemnization thereof under this Act, forbid it 
 by writing the word " forbidden " opposite to the entry of the in- 
 
 (c) R. v. Jacobs, R. & M. C. C. R. 140. of the consent of parents, &c, is unneces- 
 But since the 7 & 8 Vict. c. 81, s. 32, proof sarv. 
 
 \d) See R. v. Taggart, 2 Cox, C. C. 50.
 
 chap, xxx.] Of Bigamy* 705 
 
 tended marriage in the book of notices, and by subscribing thereto 
 his name and residence, and the character by reason of which he is 
 authorized to forbid the marriage ; and if a marriage is so forbidden 
 the notice shall be void, and the intended marriage shall not be 
 solemnized under that notice. 
 
 5. — (1.) Any person may on payment of the proper fee enter with 
 the marriage officer a caveat, signed by him or on his behalf, and 
 stating his residence and the ground of his objection against the 
 solemnization of the marriage of any person named therein, and 
 thereupon the marriage of that person shall not be solemnized until 
 either the marriage officer has examined into the matter of the caveat 
 and is satisfied that it ought not to obstruct the solemnization of the 
 marriage, or the caveat is withdrawn by the person entering it. 
 
 (2.) In a case of doubt the marriage officer may transmit a copy 
 of the caveat, with such statement respecting it as he thinks fit, to a 
 Secretary of State, who shall refer the same to the Registrar-General, 
 and the Registrar-General shall give his decision thereon in writing 
 to the Secretary of State, who shall communicate it to the marriage 
 officer. 
 
 (3.) If the marriage officer refuses to solemnize or to allow to be 
 solemnized in his presence the marriage of any person requiring it to 
 be solemnized, that person may appeal to a Secretary of State, who 
 shall give the marriage officer his decision thereon. 
 
 (4.) The marriage officer shall forthwith inform the parties of and 
 shall conform to any decision given by the Registrar-General or 
 Secretary of State. 
 
 6. Where a marriage is not solemnized within three months, next 
 after the latest of the following dates — 
 
 (a) the date on which the notice for it has been given to and 
 entered by the marriage officer under this Act, or 
 
 (h) if on a caveat being entered a statement has been transmitted 
 to a Secretary of State, or if an appeal has been made to a Secretary 
 of State, then the date of the receipt from the Secretary of State of a 
 decision directing the marriage to be solemnized, the notice shall be 
 void, and the intended marriage shall not be solemnized under that 
 notice. 
 
 7. Before a marriage is solemnized under this Act, each of the 
 parties intending marriage shall appear before the marriage officer, 
 and make, and subscribe in a book kept by the officer for the purpose, 
 an oath — 
 
 (a) that he or she believes that there is not any impediment to 
 the marriage by reason of kindred or alliance, or otherwise ; and 
 
 (b) that both of the parties have for three weeks immediately 
 preceding had their usual residence within the district of the 
 marriage officer; and 
 
 (c) where either of the parties, not being a widower or widow, 
 is under the age of twenty-one years, that the consent of the persons 
 whose consent to the marriage is required by law has been obtained 
 thereto, or, as the case may be, that there is no person having authority 
 to give such consent. 
 
 8. — (1.) After the expiration of fourteen days after the notice of 
 an intended marriage had been entered under this Act, then, if no 
 
 vol. i. — 45
 
 706 Foreign Marriage Act. [book ii. 
 
 lawful impediment to the marriage is shown to the satisfaction of 
 the marriage officer, and the marriage has not been forbidden in 
 manner provided by this Act, the marriage may be solemnized under 
 this Act. 
 
 (2.) Every such marriage shall be solemnized at the official house 
 of the marriage officer, with open doors, between the hours of eight 
 in the forenoon and three in the afternoon, in the presence of two or 
 more witnesses, and may be solemnized by another person in the 
 presence of the marriage officer, according to the rites of the Church 
 of England, or such other form and ceremony as the parties thereto 
 see fit to adopt, or may, where the parties so desire, be solemnized by 
 the marriage officer. 
 
 (3.) Where such marriage is not solemnized according to the rites 
 of the Church of England, then in some part of the ceremony, and in 
 the presence of the marriage officer and witnesses, each of the parties 
 shall declare. 
 
 "I solemnly declare, that I know not of any lawful impediment 
 why I A.B. [or CD.] may not be joined in matrimony to CD. 
 [or A.B.]." 
 
 And each of the parties shall say to the other, 
 
 " I call upon these persons here present to witness, that I. A.B. 
 [or CD.] take thee, CD. [or A.B.], to be my lawful wedded wife 
 [or husband.]" 
 
 9. — (1.) The marriage officer shall be entitled, for every marriage 
 solemnized under this Act by him or in his presence, to have from the 
 parties married the proper fee. 
 
 (2.) He shall forthwith register in duplicate every such marriage 
 in two marriage register books, which shall be furnished to him from 
 time to time for that purpose by the Registrar-General (through a 
 Secretary of State), according to the form provided by law for the 
 registration of marriages in England, or as near to that form as the 
 difference of the circumstances admits. 
 
 (3.) The entry in each book of every such marriage shall be signed 
 by the marriage officer, by the person solemnizing the marriage, if 
 other than the marriage officer, by both the parties married, and by 
 two witnesses of the marriage. 
 
 (4.) All such entries shall be made in regular order from the 
 beginning to the end of each book, and the number of the entry in 
 each duplicate shall be the same. 
 
 (5.) The marriage officer by whom or in whose presence a mar- 
 riage is solemnized under this Act may ask of the parties to be 
 married the several particulars required to be registered touching the 
 marriage. 
 
 10. — - (1.) In January in every year every marriage officer shall 
 make and send to a Secretary of State, to be transmitted by him to 
 the Registrar-General, a copy certified by him to be a true copy, of 
 all the entries of marriages during the preceding year in the register 
 book kept by him, and if there has been no such entry, a certificate 
 of that fact ; and every such copy shall be certified, and certificate 
 given, under his hand and official seal. 
 
 (2.) The marriage officer shall keep the duplicate marriage register 
 books safely until they are filled, and then send one of them to a
 
 chap, xxx.] Of Biyamy. 707 
 
 Secretary of State, to be transmitted by him to the Registrar 
 General. 
 
 11. — (1.) For the purposes of this Act the following officers shall 
 be marriage officers, that is to say : — 
 
 (a) Any officer authorised in that behalf by a Secretary of State 
 by authority in writing under his hand (in this Act referred to as a 
 marriage warrant) ; and 
 
 (b) Any officer who, under the marriage regulations hereinafter 
 mentioned is authorised to act as marriage officer without any mar- 
 riage warrant, and the district of a marriage officer shall be the area 
 within which the duties of his office are exerciseable, or any such less 
 area as is assigned by the marriage warrant or any other warrant of a 
 Secretary of State, or is fixed by the marriage regulations. 
 
 (2.) Any marriage warrant of a Secretary of State may authorise 
 to be a marriage officer — 
 
 (a) a British ambassador residing in a foreign country to the 
 government of which he is accredited, and also any officer prescribed 
 as an officer for solemnizing marriages in the official house of such 
 ambassador ; 
 
 (b) the holder of the office of British consul in any foreign country 
 or place specified in the warrant ; and 
 
 (c) a governor, high commissioner, resident, consular or other officer, 
 or any person appointed in pursuance of the marriage regulations to 
 act in the place of a high commissioner or resident, and this Act shall 
 apply with the prescribed modifications to a marriage by or before a 
 governor, high commissioner, resident, or officer so authorised by the 
 warrant, and in such application shall not be limited to places outside 
 Her Majesty's dominions. 
 
 (3.) If a marriage warrant refers to the office without designating 
 the name of any particular person holding the office, then, while the 
 warrant is in force, the person for the time being holding or acting 
 in such office shall be a marriage officer. 
 
 (4.) A Secretary of State may, by warrant under his hand, vary 
 or revoke any marriage warrant previously issued under this Act. 
 
 (5.) Where a marriage officer has no seal of his office, any reference 
 in this Act to the official seal shall be construed to refer to any seal 
 ordinarily used by him, if authenticated by his signature with his 
 official name and description. 
 
 12. A marriage under this Act may be solemnized on board one of 
 Her Majesty's ships on a foreign station, and with respect to such 
 marriage — 
 
 (a) subject to the marriage regulations a marriage warrant of a 
 Secretary of State may authorise the commanding officer of the ship 
 to be a marriage officer ; 
 
 (6) the provisions of this Act shall apply with the prescribed 
 modifications. 
 
 13. — (1.) After a marriage has been solemnized under this Act 
 it shall not be necessary, in support of the marriage, to give any 
 proof of the residence for the time required by or in pursuance of 
 this Act of either of the parties previous to the marriage, or of the 
 consent of any person whose consent thereto is required by law, nor 
 shall any evidence to prove the contrary be given in any legal proceed- 
 ing touching the validity of the marriage.
 
 708 Foreign Marriage Act. [book ii. 
 
 (2.) Where a marriage purports to have been solemnized and regis- 
 tered under this Act in the official house of a British ambassador 
 or consul, or on board one of Her Majesty's ships, it shall not be 
 necessary in support of the marriage, to give any proof of the autho- 
 rity of the marriage officer by or before whom the marriage was 
 solemnized and registered, nor shall any evidence to prove his want 
 of authority, whether by reason of his not being a duly authorised 
 marriage officer or of any prohibitions or restrictions under the mar- 
 riage regulations or otherwise, be given in any legal proceeding touch- 
 ing the validity of the marriage. 
 
 14. If a marriage is solemnized under this Act by means of any 
 wilfully false notice signed, or oath made by either party to the mar- 
 riage, as to any matter for which a notice, or oath, is by this Act 
 required, the Attorney General may sue for the forfeiture of all estate 
 and interest in any property in England accruing to the offending 
 party by the marriage ; and the proceedings thereupon, and the conse- 
 quences thereof, shall be the same as are provided by law in the like 
 case with regard to marriages solemnized in England according to 
 the rites of the Church of England. 
 
 15. If a person — 
 
 (a) knowingly and wilfully makes a false oath or signs a false 
 notice, under this Act, for the purpose of procuring a marriage, or 
 
 (b) forbids a marriage under this Act by falsely representing him- 
 self to be a person whose consent to the marriage is required by law, 
 knowing such representation to be false, such person shall suffer the 
 penalties of perjury, and may be tried in any county in England 
 and dealt with in the same manner in all respects as if the offence 
 had been committed in that county. 
 
 16. — (1.) Any book, notice, or document directed by this Act to 
 be kept by the marriage officer or in the archives of his office, shall 
 be of such a public nature as to be admissible in evidence on its 
 mere production from the custody of the officer. 
 
 (2.) A certificate of a Secretary of State as to any house, office, 
 chapel, or other place being, or being part of, the official house of a 
 British ambassador or consul shall be conclusive. 
 
 17. All the provisions and penalties of the Marriage Registration 
 Acts, relating to any registrar or register of marriages or certified 
 copies thereof, shall extend to every marriage officer, and to the 
 registers of marriages under this Act, and to the certified copies there- 
 of (so far as the same are applicable thereto), as if herein re-enacted 
 and in terms made applicable to this Act, and as if every marriage 
 officer were a registrar under the said Acts. 
 
 18. Subject to the marriage regulations, a British consul, or person 
 authorised to act as British consul, on being satisfied by personal 
 attendance that a marriage between parties, of whom one at least is 
 a British subject, has been duly solemnized in a foreign country, in 
 accordance with the local law of the country, and on payment of the 
 proper fee, may register the marriage in accordance with the marriage 
 regulations as having been so solemnized, and thereupon this Act 
 shall apply as if the marriage had been registered in pursuance of 
 this Act, except that nothing in this Act shall affect the validity of 
 the marriage so solemnized.
 
 chap, xxx.] Of Bigamy. 709 
 
 19. A marriage officer shall not be required to solemnize a mar- 
 riage, or to allow a marriage to be solemnized in his presence if in 
 his opinion the solemnization thereof would be inconsistent with 
 international law or the comity of nations ; 
 
 Provided that any person requiring his marriage to be solemnized 
 shall, if the officer refuses to solemnize it or allow it to be solemnized 
 in his presence, have the right of appeal to the Secretary of State 
 given by this Act. 
 
 Sec. 20 regulates the fees to be taken. 
 
 21. — (1.) Her Majesty the Queen in Council may make regulations 
 (in this Act referred to as the marriage regulations) — 
 
 (a) Prohibiting or restricting the exercise by marriage officers of 
 their powers under this Act in cases where the exercise of those 
 powers appears to Her Majesty to be inconsistent with international 
 law or the comity of nations, or in places where sufficient facilities 
 appear to Her Majesty to exist without the exercise of those powers 
 for the solemnization of marriages to which a British subject is a 
 party ; and 
 
 (b) Determining what offices, chapels, or other places are, for the 
 purposes of marriages under this Act, to be deemed to be part of the 
 official house or the office of a marriage officer ; and 
 
 (c) Modifying in special cases or classes of cases the requirements 
 of this Act as to residence and notice, so far as such modification 
 appears to Her Majesty to be consistent with the observance of due 
 precautions against clandestine marriages ; and 
 
 (d) Prescribing the forms to be used under this Act ; and 
 
 (e) Adapting this Act to marriages on board one of Her Majesty's 
 ships ; and to marriages by or before a governor, high commissioner, 
 resident, or other officer, and authorising the appointment of a person 
 to act under this Act in the place of a high commissioner or resident ; 
 and 
 
 (/) Determining who is to be the marriage officer for the purpose 
 of a marriage in the official house of a British ambassador, or on 
 board one of Her Majesty's ships, whether such officer is described 
 in the regulations or named in pursuance thereof, and authorising 
 such officer to act without any marriage warrant ; and 
 
 (g) Determining the conditions under which and the mode in 
 which marriages solemnized in accordance with the local law of a 
 foreign country may be registered under this Act ; and 
 
 (h) Making such provisions as seem necessary or proper for carry- 
 ing into effect this Act or any marriage regulations; and 
 
 {%) Varying or revoking any marriage regulations previously made. 
 
 (2.) All regulations purporting to be made in pursuance of this 
 section may be made either generally or with reference to any par- 
 ticular case or class of cases, and shall be published under the author- 
 ity of Her Majesty's Stationery Office, and laid before both Houses 
 of Parliament, and deemed to be within the powers of this Act, and 
 shall while in force have effect as if enacted by this Act. 
 
 (3.) Any marriage regulations which dispense for any reason, 
 whether residence out of the district or otherwise, with the require- 
 ments of this Act as to residence and notice, may require as a condi- 
 tion or consequence of the dispensation, the production of such notice,
 
 7 1 Foreign Marriage Act. [book ii. 
 
 certificate, or document, and the taking of such oath, and may author- 
 ise the publication or grant of such notice, certificate, or document, 
 and the charge of such fees as may be prescribed by the regulations ; 
 and the provisions of this Act, including those enacting punishments 
 with reference to any false notice or oath, shall apply as if the said 
 notice, certificate, or document were a notice, and such oath were an 
 oath, within the meaning of those provisions. 
 
 22. It is hereby declared that all marriages solemnized within the 
 British lines by any chaplain or officer or other person officiating 
 under the orders of the commanding officer of a British army serv- 
 ing abroad, shall be as valid in law as if the same had been solem- 
 nized within the United Kingdom, with a due observance of all forms 
 required by law. 
 
 23. Nothing in this Act shall confirm or impair or in anywise affect 
 the validity in law of any marriage solemnized beyond the seas, other- 
 wise than as herein provided, and this Act shall not extend to the 
 marriage of any of the Boyal family. 
 
 24. In this Act, unless the context otherwise requires, — the ex- 
 pression ' Eegistrar-General ' means the Registrar-General of births, 
 deaths, and marriages in England : 
 
 The expression ' Attorney General ' means her Majesty's Attorney 
 General, or if there is no such Attorney General, or the Attorney 
 General is unable or incompetent to act, her Majesty's Solicitor General, 
 for England : 
 
 The expression ' the Marriage Registration Acts ' means the Act of 
 the session of the sixth and seventh years of the reign of King William 
 the Fourth, chapter eighty-six, intituled ' an Act for registering births, 
 deaths, and marriages in England,' and the enactments amending the 
 same : 
 
 The expression ' official house of a marriage officer ' means, subject 
 to the provisions of any marriage regulations, the office at which the 
 business of such officer is transacted, and the official house of residence 
 of such officer, and, in the case of any officer, who is an officer for 
 solemnizing marriages in the official house of an ambassador, means 
 the official house of the ambassador : 
 
 The expression ' consul ' means a consul-general, consul, vice-consul, 
 pro-consul, or consular agent : 
 
 The expression 'ambassador' includes a minister and a chargb 
 d'affaires. 
 
 The expression ' prescribed ' means prescribed by marriage regula- 
 tions under this Act. 
 
 25. This Act shall come into operation on the first day of January 
 next after the passing thereof. 
 
 26. — (1.) The Acts specified in the schedule to this Act(c) are 
 hereby repealed to the extent in the third column of that schedule 
 mentioned. 
 
 Provided that — 
 
 (a) any Order in Council in force under any Act so repealed shall 
 continue in force as if made in pursuance of this Act ; and 
 
 (b) any proceedings taken with reference to a marriage, any register 
 
 (e) 4 Geo. IV. c. 91 ; 12 & 13 Vict. c. 14, s. 11 ; 53 & 54 Vict. c. 47 ; 54 & 
 c. 68 ; 31 & 32 Vict. c. 61; 33 & 34 Vict. 55 Vict. c. 74.
 
 chap, xxx.] Of Bigamy. 711 
 
 book kept, and any warrant issued in pursuance of the Acts hereby 
 repealed, shall have effect as if taken, kept, and issued in pursuance 
 of this Act ; and 
 
 (c) The fees which can be taken in pursuance of the Acts hereby 
 repealed may continue to be taken in like manner as if fixed in pur- 
 suance of the Consular Salaries and Fees Act, 1891, and may be 
 altered accordingly : and 
 
 (d) The forms prescribed by or in pursuance of the Acts hereby 
 repealed may continue to be used as if prescribed by an Order in 
 Council under this Act. 
 
 (2.) Every marriage in fact solemnized and registered by or before 
 a British consul or other marriage officer in intended pursuance of any 
 Act hereby repealed shall, notwithstanding such repeal or any defect 
 in the authority of the consul or the solemnization of the marriage 
 elsewhere than at the consulate, be as valid as if the said Act had not 
 been repealed, and the marriage had been solemnized at the consulate 
 by or before a duly authorised consul ; 
 
 Provided that this enactment shall not render valid any marriage 
 declared invalid before the passing of this Act by any competent 
 court, or render valid any marriage either of the parties to which has, 
 before the passing of this Act, lawfully intermarried with any other 
 person. 
 
 By 28 & 29 Vict. c. 64, after reciting that laws ' have from time 
 to time been made by the legislature of divers of her Majesty's pos- 
 sessions abroad for the purpose of establishing the validity of certain 
 marriages previously contracted therein, but doubts are entertained 
 whether such laws are in all respects effectual for the aforesaid 
 purpose beyond the limits of such possessions,' it is enacted as 
 follows : — 
 
 Sec. 1. 'Every law made or to be made by the legislature of any 
 such possession as aforesaid, for the purpose of establishing the valid- 
 ity of any marriage or marriages contracted in such possession, shall 
 have and be deemed to have had from the date of the making of such 
 law, the same force and effect, for the purpose aforesaid, within all 
 parts of her Majesty's dominions, as such law may have had, or may 
 hereafter have, within the possession for which the same was made : 
 provided that nothing in this law contained shall give any effect or 
 validity to any marriage, unless at the time of such marriage both of 
 the parties thereto were, according to the law of England, competent 
 to contract the same.' 
 
 Sec. 2. ' In this Act the word " legislature " shall include any author- 
 ity competent to make laws for any of her Majesty's possession 
 abroad, except the Parliament of the United Kingdom and her 
 Majesty in Council.' 
 
 Certain marriages of British subjects are legalized in Mexico by 
 the 17 & 18 Vict. c. 88 ; in Moscow, Tahiti, and Ningpo by the 21 
 & 22 Vict. c. 46 ; at Lisbon, by the 22 & 23 Vict. c. 64 ; in the Ionian 
 Islands by the 23 & 24 Vict. c. 86; (/) at Morro Velho, in the 
 empire of Brazil, by the 30 & 31 Vict. c. 93 ; and provision is made 
 
 (/) This Act is repealed by 27 & 28 Islands, and makes certain documents evi- 
 Vict. c. 77, s. 4. This latter Act contains dence. 
 provisions as to marriages in the Ionian
 
 712 Proof of Marriages Abroad. [book ii. 
 
 for the transmission to the registrar-general of certificates of these 
 marriages, &c. 
 
 Certain marriages in Odessa are legalized by the 30 & 31 Vict. 
 c. 2 ; and see as to China, 31 & 32 Vict. c. 61. 
 
 Marriages in the colony and dependencies of Newfoundland were 
 for some time regulated by the statute 5 Geo. 4, c. 68, which repealed 
 a former statute, 57 Geo. 3, c. 51, upon the same subject. The 5 
 Geo. 4, c. 68, with the exception of a proviso in sec. 1, relating to 
 marriages which had taken place before the 25th March, 1825, is 
 repealed by the 36 & 37 Vict. c. 91. 
 
 In an action for criminal conversation the marriage of the plaintiff 
 and his wife, who were both Quakers, had been performed according 
 to the ceremonies of the sect, by a public declaration of the parties, 
 at a monthly meeting of the society, of their becoming man and wife, 
 and a certificate to the effect entered in a register, signed by the 
 parties and by several subscribing witnesses. The register was pro- 
 duced and proved by one of the witnesses, and a member of the 
 society proved the forms observed to be those usually considered 
 as necessary to marriage among Quakers, (g) 
 
 Where two witnesses were called, who swore that they were 
 present in the Jewish synagogue when a marriage took place, it was 
 insisted that what took place in the synagogue was merely a ratifica- 
 tion of a previous written contract, and as that contract was essential 
 to the validity of the marriage, it ought to be produced and proved ; 
 and the contract, in the Hebrew tongue, was accordingly put in and 
 proved, (h) So a Jewish divorce can only be proved by producing 
 the document of divorce delivered by the husband to the wife, (i) 
 
 The law of France as to marriage may be proved by the production 
 of a book, purporting to contain the code of France, and proved by 
 oral testimony of a witness acquainted with the law of France, to 
 contain the law of France. The articles of the law of France, which 
 prescribe the forms essential to marriage, do not declare a marriage 
 void for non-observance of those forms, but parol evidence is admis- 
 sible to show that, by the law of France, a marriage in fact, without 
 observance of the requisites prescribed by the articles, is void, (j) 
 
 It was formerly held that if an idiot contracted matrimony, it was 
 good and should bind him : but modern resolutions appear to have 
 proceeded upon the more reasonable doctrine of the civil law, by 
 determining that the marriage of a lunatic, not being in a lucid 
 interval, is absolutely void. And as it might be difficult to prove 
 the exact state of the mind of the party at the actual celebration of 
 the nuptials, the 15 Geo. 2, c. 30, has provided that if persons found 
 lunatics under a commission, or committed to the care of trustees 
 by any Act of Parliament, marry before they are declared of sound 
 mind by the Lord Chancellor, or the majority of such trustees, the 
 marriage shall be totally void, (k) 
 
 Upon indictments for bigamy it is not sufficient to prove a first 
 marriage by cohabitation and reputation ; but it is necessary to prove 
 
 (a) Deane v. Thomas, M. & M. 361. and qu., whether such a divorce would be 
 
 See the 11 & 12 Vict. c. 58, 23 & 24 Vict, any defence to an indictment for bigamy. 
 
 c. 18, 32 Vict. c. 10, ante, pp. 674, 687. See the learned note of the reporters, ibid. 
 
 (h) Horn v. Noel, 1 Camp. 61. R. v. (?) Moss v. Smith, 1 Man. & Gr. 228. 
 
 Althausen, 17 Cox, C. C. 630. (/,) 1 Bl. Com. 438, 432. 
 
 (i) Lacon v. Higgins, 3 Stark. N. P. 178,
 
 chap, xxx.] Of Bigamy. 713 
 
 what the courts call a marriage in fact, that is, an actual mar- 
 riage. (0 The 4 Geo. 4, c. 76, s. 28, requires that marriages shall lie 
 solemnized in the presence of two or more credible witnesses, lie- 
 sides the minister who shall celebrate the same, and the 6 & 7 Will. 
 4, c. 86, s. 31, that it shall be registered in duplicate according to 
 the form in the schedule, and that each entry shall be signed by the 
 minister and parties married, and attested by two witnesses. But, 
 upon a provision nearly similar in the former Marriage Act, it was 
 held not to be necessary to call one of the subscribing witnesses to 
 the register in order to prove the identity of the persons married ; 
 but that the register, or the copy of it, being produced, any evidence 
 which satisfied the jury as to the identity of the parties was suffi- 
 cient: as if their handwriting to the register were proved; or that 
 bell-ringers were paid by them for ringing for the wedding, or the 
 like, (m) The prisoner was indicted for marrying Ann Epton, whilst 
 Jane, his former wife, was living; each marriage was proved by a 
 witness who was present at the ceremony ; and it appeared that at 
 the first marriage the prisoner went by the name of Allison, and at 
 the second by the name of Wilkinson. Chambre, J., doubted whether 
 the evidence was sufficient without proof of the banns ; but the 
 judges held that it was. (n) 
 
 Upon an indictment for bigamy it was proved on the part of the 
 prisoner that her first husband, before he married her had been in 
 Canada, and that he was absent for about two years, and when he 
 returned he said he had brought his wife with him, and a lady 
 accompanied him, whom he treated as his wife, and every one else 
 regarded her in that capacity; she had been heard of as being alive 
 after the prisoner's first marriage ; and thereupon Crompton, J., 
 interposed, and said that there was evidence of a prior marriage, 
 and, although there might be some technical difficulty in proving 
 the marriage in Canada, still if there was reasonable doubt of the 
 fact, the prisoner ought to be acquitted, and the jury said it was 
 unnecessary to hear any more evidence, (o) 
 
 In one case it was ruled, that if A. takes B. to husband in Holland, 
 and then, in Holland, takes C. to husband, living B., and then B. dies, 
 and then A., living C, marries D., this is not marrying a second hus- 
 band, the former being alive ; the marriage to C, living B., being 
 simply void. But if B. had been living, it would have been felony to 
 have married I), in England, (jo) 
 
 The prisoner was indicted for marrying E. Chant, widow, E. Itowe, 
 his wife, being then alive ; it appeared that E. Chant was, in fact and 
 by reputation, a single woman ; it was objected that she was improp- 
 erly described in the indictment as a widow, and upon a case reserved 
 the judges were unanimously of opinion that the misdescription was 
 fatal, though it was not necessary to have stated more than the name 
 of the party, (q) So where, on an indictment for bigamy describing 
 
 {l) Catherwood v. Caslon. 13 M. & W. (o) R. v. Wilson, 3 F. & F. 119. See 
 
 261. Hamblin v. Shelton, 3 F. & F. 133 ; and 
 
 (m) 1 East, P. C. e. 12. s. 11, p. 472. Doe d. Flemings Fleming, 4 Bing. R. 266, 
 
 Bull. N. P. 27. See Morris v. Miller, 4 for similar evidence in civil cases. 
 
 Burr. 2057. Birt v. Barlow. Dougl. 162. (/>) Lady Madison's case, 1 Hale, 693. 
 
 (n) R. v. Allison, MS. Bayley, J., and (q) R. v. Deeley, R. & M. C. C. R. 303. 
 
 R. & R. 109. S. C. 4 C. & P. ;">79. But such a variance
 
 714 Evidence of First Marriage. [book ii. 
 
 the first wife as Ann Gooding, an examined copy of the certificate (r) 
 of the marriage of the prisoner and Sarah Ann G-ooding was put in, 
 and there was no evidence to explain the difference in the names : 
 Maule, J., directed an acquittal, (s) 
 
 On an indictment for bigamy a photograph which had been taken 
 from the prisoner, and which she had said was that of her husband, 
 was allowed to be shown to a witness present at the first marriage, 
 and also to another witness who had known the man of whom the 
 photograph was a likeness, in order to prove his identity with the 
 person mentioned in the marriage certificate, (t) 
 
 The 6 & 7 Will. 4, c. 86 (an Act for registering births, marriages, 
 and deaths in England), by sec. 38, enacts that all certified copies of 
 entries purporting to be sealed or stamped with the seal of the regis- 
 ter-office, shall be received as evidence of the birth, death, or mar- 
 riage to which the same relates, without any further or other proof 
 of such entry ; and no certified copy purporting to be given in the 
 said office shall be of any force or effect, which is not sealed or 
 stamped as aforesaid, (u) 
 
 In one case it was held that proof of the prisoner's cohabiting with 
 and acknowledging himself married to a former wife then living, such 
 assertion being backed by his producing to the witness a copy of a 
 proceeding in a Scotch court against him and his wife for having con- 
 tracted the marriage improperly (the marriage, however, being still 
 good according to that law) was sufficient evidence of the first mar- 
 riage. The point being reserved, all the judges who were present 
 held the conviction proper. Two of them observed that this did not 
 rest upon cohabitation and bare acknowledgment, for the defendant 
 had backed his assertion by the production of the copy of the pro- 
 ceeding ; but some of the judges thought that the acknowledgment 
 alone would have been sufficient, and that the paper produced in evi- 
 dence was only a confirmation of such acknowledgment, (r) So 
 where it was proved that the prisoner being charged with bigamy 
 made a statement before a justice, in which he expressly declared 
 that he had married his first wife, who was then present ; Erskine, J., 
 left the case to the jury, observing, that this was not au incautious 
 statement made without due attention, but that the prisoner's mind 
 was directed to the very point by the charge made against him. (w) 
 
 So where upon an indictment for bigamy it appeared that the 
 prisoner returned from America with a woman described in the 
 
 maybe amended under the 14 & 15 Vict. (r) Truman's case, Nottingham^ Spr. 
 
 c. 100, s. 1. Assizes, 1795, decided upou hv the judges 
 
 (r) Quoere, Register. in East. T. 1795, MS. Jud. i East, P. C. 
 
 (s) R. v. Gooding, C. & M. 297. Maule, c. 12, s. 10. pp. 470, 471 ; where see some 
 
 J., thought that ' evidence might perhaps he remarks as to the admission of a bare ac- 
 
 offered to explain the circumstance of this knowledgnient in evidence in a case of this 
 
 difference in the name of the prisoner's first nature. An admission or statement made 
 
 wife, as she is described in the indictment, by a prisoner is evidence against him, 
 
 and as described in the marriage certificate ; though it may under circumstances be 
 
 and even in the absence of such evidence, entitled to little or no weight, 
 
 proof might be supplied that the woman (w) R. v. Dennis Upton, Gloucester Spr. 
 
 was known by both names.' Ass. 1839. R. v. Flahertv, 2 C. & K. 782. 
 
 (0 R. v. tolson, 4 F. & F. 103. See Dickinson v. Coward. 1 B. & A. 679, 
 
 (u) See also the 3 & 4 Vict. c. 92, 21 & per Lord Ellenborough, C. J. See also 2 
 
 22 Vict. c. 25. See Vol. III., Evidence. Stark. Evid. 251, 2nd edit.
 
 chap, xxx.] Of Bigamy. 715 
 
 indictment as Mary Carlisle, with whom he lived as his wife for some 
 years afterwards ; and that soon after his return he told her Bister 
 that he had been married to Mary Carlisle at New York by a Presby- 
 terian minister, and he subsequently caused the bellman at Oldham 
 to give public notice, which he did, that no one was to give credit to 
 'Mary, the wife of John Newton;' and some time afterwards Mary 
 Newton, describing herself as his wife, complained to a magistrate of 
 his having ill-treated her, and the prisoner attended before the magis- 
 trate, and did not deny the alleged marriage, but said he could no 
 longer live with her on account of her jealousy, and consented to allow 
 her eight shillings a week ; Wightman, J., after consulting Creswell, 
 J., told the jury that the question was, whether they were satisiied 
 by the statements made by the prisoner on the various occasions 
 referred to that he had been married to Mary Carlisle in America, 
 and that such marriage was a valid one according to the law of that 
 country. The jury were to say whether, as against the prisoner, it 
 might not be taken, on the faith of his own repeated declarations, 
 that the marriage had been a valid one according to the law in force 
 at New York. That declarations lightly or hastily made were 
 entitled to very little weight in such a case ; but what the prisoner 
 said deliberately, and when it was obviously his interest to deny mar- 
 riage, if he did not know it to be a valid one, was undoubtedly evi- 
 dence entitled to the very serious consideration of the jury, (x) 
 
 After proof of the first marriage the second wife may be a witness ; 
 but it is clear that the first and true wife cannot be admitted to give 
 evidence against her husband, (y) 
 
 The prisoner was indicted for having married A. Walker, his first 
 wife, A. Armstrong, being alive : the prisoner's first marriage with A. 
 Armstrong was proved. The prisoner's defence was, that the first 
 marriage was void, as A. Armstrong had a husband living at the 
 time, and he proposed to call A. Armstrong to prove that fact ; it was 
 objected to her competency, that the fact of her marriage with the 
 prisoner having been proved, she must be taken to be his lawful wife. 
 Alderson, B., was at first inclined to think that she might be examined 
 simply to the fact of her being the wife or not of the prisoner ; but 
 after conferring with Williams, J., he determined not to receive her 
 evidence, but to reserve the point, (z) But where a woman, called as 
 
 {x) R. v. Newton, 2 M. & Rob. 503. extend to a wife de facto, but not de jure.' 
 
 S. C. as R. v. Simmonsto, 1 C. & K. 164. 2 Stark. Evid. 432 (2nd edit.). In Wells 
 
 See R. v. Savage, 13 Cox, C. C. 178, where v. Fletcher, 5 C. & F. 12 S. C. 1 M. & Rob. 
 
 it seems Lush, J., refused to act on R. v. 99, a woman called for the defendant on 
 
 Newton. examination on the voire dire, said she had 
 
 (//) 1 Hale, 693. 1 East, P. C. c. 12, been married to the plaintiff, and on re- 
 
 s. 9, p. 469, and 1 Hawk. c. 42, s. 8, where examination that she was married to another 
 
 it is said that this rule has been so strictly person previously ; but not seeing him for 
 
 taken that even an affidavit to postpone the thirty years, she thought he was dead, and 
 
 trial made by the first wife has been re- therefore married the plaintiff, but after- 
 
 jected, and Old Bailey, Feb. Sess. 1786, is wards found that her first husband was 
 
 cited. living; and Patteson, J., held that the 
 
 (~) Peat's case, 2 Lewin, 288. The witness was competent, as the second mar- 
 prisoner was acquitted. The first impres- riage was a nullity. If Peat's case had 
 sion of the very learned Baron seems to been an indictment for larceny, and the 
 have been the correct one. The only witness called for the prisoner bad proved 
 ground on which the witness could be re- her marriage to him on the voire dire, Wells 
 jected was, that she was the lawful wife of v. Fletcher shows that she might have been 
 the prisoner; for ' tho general rule does not rendered competent by moving her previous
 
 716 
 
 Evidence. — Indictment. 
 
 [book ii. 
 
 a witness against a prisoner, proved on the voire dire (a) that she mar- 
 ried the prisoner in 1849, Erie, J., held that she might also prove on 
 the voire dire that she had a sister seven years older than herself, and 
 that they had been brought up together with their parents, and that 
 she always believed that they were sisters, and that her sister had 
 married the prisoner in 1846, and died in 1848 ; for if a person is 
 questioned on the voire dire with the view to raise an objection to her 
 competency, she may also be examined to remove that prima facie 
 ground of objection, (h) 
 
 A daughter wrote to her father in America, and in about two 
 months afterwards received a letter in reply in his handwriting, dated 
 the 31st of May, 1836 ; it was held that this was evidence that he 
 was then alive, (c) 
 
 An indictment for bigamy under the 35 Geo. 3, c. 57, s. 1 (now re- 
 pealed), alleging that the prisoner married A., and afterwards felon- 
 iously married C, ' the said A., his former wife, being then alive,' 
 sufficiently charged the offence, without also alleging that the prisoner 
 was still married to A., when he married C. ; for a divorce from A. 
 was not to be presumed, (d) 
 
 marriage, and it is difficult to see how proof 
 by other evidence that she had married the 
 prisoner, whether such evidence was given 
 before or after she was called, could render 
 her incompetent ; for her evidence would 
 not be inconsistent with such evidence, as it 
 would admit the marriage with the prisoner, 
 but show that it was void. R. v. Bathwick, 
 2 B. & Ad. 639, shows that the competency 
 of the wife does not depend upon the mar- 
 shalling of the evidence, or the particular 
 stage of the case in which she may be called; 
 if, therefore, in Peat's case the witness had 
 been called before her marriage with the 
 prisoner had been proved, and she would 
 have been competent to prove her previous 
 marriage, it is difficult to see how her mar- 
 riage with the prisoner having been proved 
 before she was called could render her in- 
 competent, and it certainly would operate 
 hardly on a prisoner, if such were the case, 
 for the prosecutor might in the course of 
 his case prove the marriage of the witness 
 with the prisoner, and the prisoner might 
 
 have no one except the witness to prove the 
 former marriage. It may be added that 
 Lord Hale says that a second wife is not so 
 much as a wife dc facto. C. S. G. 
 
 (o) As to the meaning of voire dire, see 
 Vol. III. 
 
 (b) R. v. Young, 5 Cox, C. C. 296. 
 
 (c) Reed v. Norman, 8 C. & P. 65. 
 Lord Deninan, C. J. : his lordship held in 
 the same case, that the post-mark was evi- 
 dence that the letter was put into the post, 
 but that the letter might have been written 
 at any time, and therefore proof was given 
 that it was in reply to the daughter's letter; 
 but this seems to have been unnecessary, 
 for the date is prima facie evidence of the 
 time when an instrument is written. R. v. 
 Harborne. Sinclair r. Baggaley, 4 M. & 
 W. 313. Hunt v. Massey, 5 P>/& Ad. 903. 
 Potez v. Glossop, 2 Exch. R. 191. Ander- 
 son v. Weston, 6 B. N. C. 296. Morgan v. 
 Whitmore, 6 Exch. 716. 
 
 (d) Murray v. R., 7 Q. B. 700. R. v. 
 Apley, 1 Cox, C. C. 71.
 
 CHAPTER THE THIRTY-FIRST. 
 
 OF FORCIBLE ENTRY AND DETAINER. 
 
 A forcible entry or detainer is committed by violently taking or 
 keeping possession of lands and tenements with menaces, force, and 
 arms, and without the authority of the law. (a) It has been laid 
 down in the books that, at common law, and before the passing of the 
 statutes relating to this subject, if a man had a right of entry upon 
 lands or tenements, he was permitted to enter with force and arms ; 
 and to detain his possession by force, where his entry was lawful : (b) 
 and that even at this day he who is wrongfully dispossessed of his 
 goods, may justify the retaking of them by force from the wrong-doer, 
 if he refuse to redeliver them, (c) However, it is clear that, in many 
 cases, an indictment will lie at common law for a forcible entry, if it 
 contain, not merely the common technical words, ' with force and 
 arms,' but also such a statement as shows that the facts charged 
 amount to more than a bare trespass, for which no one can be in- 
 dicted, (d) And in a case in the Court of King's Bench, it was men- 
 tioned, by the great judge who then presided in that Court, as a part 
 of the law which ought to be preserved, that no one shall with force 
 and violence assert his own title, (e) But on a subsequent day of the 
 same term he said that the court wished that the grounds of their 
 opinion in that case might be understood, and desired that it might 
 not be considered as a precedent in other cases to which it did not 
 apply. He then proceeded : ' Perhaps some doubt may hereafter arise 
 respecting what Mr. Serjeant Hawkins says, that at common law the 
 party may enter with force into that to which he has a legal title. 
 But without giving any opinion concerning that dictum one way or 
 the other, but leaving it to be proved or disproved whenever that 
 question shall arise, all that we wish to say is, that our opinion in 
 this case leaves that question untouched : it appearing by this indict- 
 ment that the defendants unlawfully entered, and therefore the Court 
 cannot intend that they had any title.' (/) There seems now to be 
 no doubt that a party may be guilty of a forcible entry by vio- 
 
 (a) 4 Black. Com. 148. a strong hand, entered, &c, and it was held 
 
 (b) Dalt. Just. 297. Lamb. 135. Oom. good. 
 
 70 a, b. 2 Hawk. P. C. c. 64, ss. 1, 2, 3. (e) By Lord Kenyon, C. J., R. v. Wil- 
 
 Bac. Abr. tit. Forcible Entry and Detainer. son, 8 T. R. 361, and in Taunton v. Costar, 
 
 (c) 1 Hawk. P. C. c. 64, s. 1. Blades 7 T. R. 431, the same learned judge said, 
 v. Higgs, 10 C. B. (N. S.) 713. ' If the landlord had entered with a strong 
 
 (d) R. v. Bake, 3 Burr. 1731. R. v. hand to dispossess the tenant by force [after 
 Bathurst, Say. 225, referred to in R. v. the expiration of his term] he might have 
 Storr, 3 Burr. 1699, 1702. R. v. Wilson, been indicted for a forcible entry ;' and see 
 8 T. R. 357, in which last case the indict- Turner v. Meymot, 1 Bing. 158, 7 Moor, 
 ment charged the defendants (twelve in 574. 
 
 number) with having unlawfully and with (/) 8 T. R. 364.
 
 718 Of Forcible Entry and Detainer. [book n. 
 
 lently, and with force, entering into that to which he has a legal 
 title, (g) 1 But where a breach of the peace is committed by a free- 
 holder, who, in order to get into possession of his land, assaults a 
 person wrongfully holding possession of it against his will, although 
 the freeholder may be responsible to the public in the shape of an 
 indictment for a forcible entry, he is not liable to the person wrong- 
 fully holding possession, (h) 
 
 Whatever may be the true doctrine upon this subject at common 
 law, the statutes which have been passed respecting forcible entries 
 and detainers are clearly intended to restrain all persons from having 
 recourse to violent methods of doing themselves justice : and it is the 
 more usual and effectual method to proceed upon these statutes, which 
 give restitution and damages to the party grieved. 
 
 By the 5 Bich. 2, c. 8, ' none shall make entry into any lands and 
 tenements, but in case where entry is given by the law ; and in such 
 case not with strong hand, nor with multitude of people, but only in 
 a peaceable and easy manner,' on pain of imprisonment and ransom. 
 This statute gave no speedy remedy, leaving the party injured to the 
 common course of proceeding by indictment or action ; and made no 
 provision at all against forcible detainers. The 15 Bich. 2, c. 2, goes 
 further, and enacts, that on complaint of forcible entry into lands and 
 tenements, or other possessions whatsoever, 'to the justices of peace 
 or any of them, the same justices or justice take sufficient power of 
 the county, and go to the place where the force is made; and if they 
 find any that hold such place forcibly after such entry made, they 
 shall be taken and put in the next gaol, there to abide convict by the 
 record of the same justices or justice,' until they make fine and ran- 
 som ; and that the people of the county and the sheriff shall assist, 
 &c, on pain of imprisonment and fine. ' And in the same manner it 
 shall be done of them that make such forcible entries in benefices or 
 offices of holy church.' But this statute gave no remedy against 
 those who were guilty of a forcible detainer after a peaceable entry, 
 nor against those who were guilty of both a forcible entry and 
 forcible detainer, if they were removed before the coming of a justice 
 of peace ; and it gave no power to the justice to restore the party 
 injured to his possession, and did not impose any penalty on the 
 
 (g) In Newton v. Harland, 1 M. & Gr. further as to this, Harvey v. Bridges, 14 M. 
 
 644, the judges of the Court of Common & W. 437 ; 1 Exch. R. 361 ; Butcher v. 
 
 Pleas seem to have been of opinion that a Butcher, 7 B. & C. 399 ; 1 M. & R. 220 ; 
 
 landlord who entered forcibly into the house Hillary v. Gay, 6 C. & P. 284 ; Davison v. 
 
 of a tenant after the expiration of his tprm, Wilson, 11 Q. B. 890, 17 L. J. Q. B. 196 ; 
 
 would be guilty of a forcible entry, both Burling v. Read, 11 Q. B._904 : Pollen v. 
 
 at common law and under the statutes ; and Brewer, 7 C. B. (N. S.) 371 ; R. r. Studd, 
 
 the only doubt was whether, supposing there 14 W. R. 806 ; 14 L. T. N. S. 633 ; Taylor 
 
 was such a forcible entry upon a tenant v. Cole, 3 T. R. 295. 
 
 after the expiration of the term, the pos- (h) Per Parke, B., Harvey v. Bridges, 
 
 session thereby obtained was legal. See supra. 
 
 American Note. 
 
 1 But in America it has been held that forcible entry if the magistrate had juris- 
 
 it is not a forcible entry for a man to enter diction, otherwise if he had none. Sewell 
 
 by force premises of which his wife is in v. S., 61 Ga. 426 ; S. v. Yarborough, 70 
 
 possession. Moms v. Bowles, Dana, 97. N. C. 250 ; Perry v. Tupper, 70 N. C. 
 
 An entry under legal process, however 538. 
 unjustly obtained, is not indictable as a
 
 chap, xxxi.] Of Forcible Entry and Detainer. 719 
 
 « 
 
 sheriff for disobeying the precepts of the justices in the execution of 
 the statute. Further enactments were therefore necessary, (i) 
 
 By the 8 Hen. 6, c. 9, s. 3, though the persons making forcible 
 entries 'be present or else departed before the coming of the justices 
 or justice, the same justices or justice, in some good town next to the 
 tenements so entered, or in some other convenient place, according to 
 their discretion, shall have or either of them shall have authority to 
 inquire, by the people of the same county, as well of them that make 
 such forcible entries in lands and tenements as of them which the 
 same hold with force ; and if it be found before any of them that any 
 doth contrary to this statute, then the said justices or justice shall 
 cause to re-seise the lands and tenements so entered or holden as 
 afore, and shall put the party out in full possession as before.' And 
 after making provision concerning the precepts of the justices to the 
 sheriff to return a jury to inquire of forcible entries, the qualification 
 of the jurors, and the remedy by action against those who obtain 
 forcible possession of lands, &c, sec. 6 enacts, that mayors, &c, of 
 cities, towns, and boroughs, having franchise, shall have in such cities, 
 &c, like power to remove such entries, and in other articles aforesaid, 
 rising within the same, as the justices of peace and sheriffs in coun- 
 ties. Sec. 7 provides, that ' they which keep their possessions with 
 force in any lands or tenements, whereof they or their ancestors, or 
 they whose estates they have in such lands and tenements, have con- 
 tinued their possessions in the same by three years or more, be not 
 endamaged by force of this statute.' And by the 31 Eliz. c. 11, ' no 
 restitution, upon any indictment of forcible entry, or holding with 
 force, be made to any person or persons, if the person or persons so 
 indicted hath had the occupation, or hath been in quiet possession by 
 the space of three whole years together next before the day of such 
 indictment so found, and his, her, or their estate or estates therein 
 not ended or determined ; which the party indicted shall and may 
 allege for stay of restitution, and restitution to stay until that be 
 tried, if the other will deny or traverse the same ; and if the same 
 allegation be tried against the same person or persons so indicted, 
 then the same person or persons so indicted to pay such costs and 
 damages to the other party as shall be assessed by the judges or jus- 
 tices before whom the same shall be tried ; the same costs and dam- 
 ages to be recovered and levied as is usual for costs and damages 
 contained in judgments upon other actions.' 
 
 The 15 Rich. 2, c. 2, gave magistrates a summary jurisdiction in all 
 cases of forcible entry ; but in cases of forcible detainer, only where 
 there had been a previous forcible entry ; notwithstanding that statute, 
 a party who had acquired the possession of lands peaceably but un- 
 lawfully, might afterwards detain them forcibly ; that was a mischief 
 the 8 Hen. 6, c. 9, was intended to remedy; and it gives justices 
 summary jurisdiction only in cases of forcible detainer, preceded 
 by an unlawful entry, and therefore a conviction by justices on 
 that statute merely stating an entry and a forcible detainer is 
 insufficient, (j) 
 
 (i) Upon the imposing and levying the collected in Bac Abr. tit. Forcible Entry 
 fine under this statute of Rich. 2, see 1 and Detainer (A.) in the notes. 
 Hawk. P. C. c. 64, s. 8, and the cases (j) R. v. Oakley, 4 B. & Ad. 307. See
 
 720 Of Forcible Entry and Detainer. [book ii. 
 
 In the construction of these statutes it has been holden, that if a 
 lessee for years or a copyholder be ousted, and the lessor or lord dis- 
 seised, and such ouster, as well as disseisin, be found in an indictment 
 of forcible entry, the Court may, in their discretion, award a restitu- 
 tion of the possession to such lessee or copyholder ; which was, by 
 necessary consequence, a re-seisin of the freehold also, whether the 
 lessor or lord had desired or opposed it. But it was a great question, 
 whether a lessee for years or a copyholder, being ousted by the lessor 
 or lord, could have a restitution of their possession within the equity 
 of 8 Hen. 6, the words of which are, that the justice ' shall cause to 
 re-seise the lands,' &c, and by which it seems to be implied that the 
 party must be ousted of such an estate whereof he may be said to be 
 seised, which must at least be a freehold. For the purpose of remov- 
 ing this doubt, it was enacted by 21 Jac. 1, c. 15, that such judges, 
 justices, or justice of the peace as by reason of any Act of Parliament 
 then in force were authorised to give restitution to tenants of any 
 estate of freehold of their lands, &c, entered upon by force or with- 
 holden by force, shall have the like authority (upon indictment of 
 such forcible entries or forcible withholdings) to give like restitution 
 of possession to ' tenants for terms of years, tenants by copy of court 
 roll, guardians by knight's service, tenants by elegit, statute merchant 
 and staple.' It has been holden, that a tenant by the verge is not 
 within this statute : but the propriety of this decision is doubted ; as 
 such person, having no other evidence of his title but by the copy of 
 court roll, seems at least to be within the meaning, if not within the 
 words, of the statute, (k) 
 
 If a lessor eject his lessee for years, and afterwards be forcibly put 
 out of possession again by such lessee, he has no remedy for a resti- 
 tution by force of any of the above-mentioned statutes : there seems, 
 however, to be no doubt but that a justice of peace, &c, may remove 
 the force, and commit the offender. (I) 
 
 The law upon these statutes respecting forcible entries and detainers 
 may be further considered with reference — 
 
 I. To the persons who may commit the offence, p. 720. 
 II. To the nature of the possessions in respect of which it may 
 be committed, p. 721. 
 III. To the acts which will amount to a forcible entry, p. 722. 
 And, IV. To the acts which amount to a forcible detainer, 
 p. 724. 
 
 I. A man who breaks open the doors of his own dwelling-house, or 
 of a castle, which is his own inheritance, but forcibly detained from 
 him by one who claims the bare custody of it, cannot be guilty of a 
 forcible entry or detainer within these statutes, (m) 1 Where a wife 
 
 R. v. Wilson, 1 A. & E. 627 ; R. v. Wilson, {m) Bac. Abr. tit. Forcible Entry, Ac, 
 
 3 Ad. & E. 817 ; Attwood v. Joliffe, 3 S. C. (D.) 1 Hawk. P. C c. 64, s. 32, where it 
 
 116, as to the form of such a conviction. is said also that a man will not be within 
 
 [k) 1 Hawk. P. C. c. 64, s. 17. the statutes who forcibly enters into land 
 
 (/) Id. ibid. ss. 17, 18. in the possession of his own lessee at will ; 
 
 American Note. 
 1 It has been held in America that a own premises held by a servant. C. v. 
 mere custody of lands, &c, as distinguished Keeper of Prison, 1 Ashni. 140 ; S. v. 
 from actual possession, is not sufficient, nor Curtis, 4 Dev. & Bat. 222. See also S. v. 
 can a man commit forcible entry upon his Pearson, 2 N. H. 550.
 
 chap, xxxi.] Of Forcible Entry and Detainer. 721 
 
 was indicted with others for a forcible entry into a house, which she 
 had taken for herself, but of which her husband had afterwards 
 obtained possession with the landlord's consent, and it was objected 
 that a wife could not be guilty of a forcible entry into the house of 
 her husband ; Lord Tenterden, C. J., said, ' although a wife certainly 
 cannot commit a trespass on the property of her husband, I am by 
 no means satisfied that, if she comes with strong hand, she may not 
 be indictable for a forcible entry, which proceeds on the breach of the 
 public peace.' ' As at present advised I think she may be guilty of a 
 forcible entry, if her entry was made under circumstances of violence 
 amounting to a breach of the public peace.' (n) But a joint tenant 
 or tenant in common may offend against the statutes either by forcibly 
 ejecting or forcibly holding out his companion ; for though the entry 
 of such a tenant be lawful per my et per tout, so that he cannot in 
 any case be punished in an action of trespass at common law, yet the 
 lawfulness of his entry does not excuse the violence, or lessen the 
 injury, clone to his companion ; and, consequently, an indictment of 
 forcible entry into a moiety of a manor, &c, is good, (o) Also where 
 a man has been in possession of land for a great length of time by a 
 defeasible title, and a claim is made by him who has a right of entry, 
 the wrongful possessor, continuing his occupation, will be punishable 
 for a forcible entry and detainer ; because all his estate was defeated 
 by the claim, and his continuance in possession afterwards amounts 
 in the judgment of law to a new entry, (p) It does not follow from 
 the decision in E. v. Oakley (q) that the 8 Hen. 6, c. 9, does not 
 apply to the case of a tenant at will or for years, holding over after 
 the will is determined or term expired, because the continuance 
 afterwards may amount in judgment of law to a new entry. (?^) 
 
 II. A person may be guilty of this offence by a force done to eccle- 
 siastical possessions, as churches, vicarage houses, &c, as much as if 
 it were done to a temporal inheritance. And it has been holden, as a 
 general rule, that a person may be indicted for a forcible entry into 
 any such incorporeal hereditament for which a writ of entry will lie, 
 either by the common law, as for rent, or by statute, as for tithes, &c. 
 It is, however, questioned whether there be any good authority that 
 such an indictment will lie for a common or office ; though it seems 
 agreed that an indictment of forcible detainer lies against any one, 
 whether he be the terre-tenant or a stranger, who shall forcibly 
 disturb the lawful proprietor in the enjoyment of these possessions ; 
 as by violently resisting a lord in his distress for a rent, or by mena- 
 cing a commoner with bodily hurt, if he dare put in his beasts into 
 the common, &c. No one can come within the danger of these stat- 
 utes by a violence offered to another in respect of a way, or such like 
 easement which is no possession. But it seems that a man cannot 
 be convicted, upon view, by force of the 15 Bich. 2, c. 2, of a forcible 
 
 but a qu. is subjoined. And see R. v. & P. 201. And see Doe v. Daly, 8 Q. B. 
 
 Wilson, 8 T. R. 364. Taunton v. Costar, 934. 
 
 7 T. R. 431. Turner v. Meymot, 1 Bing. (o) 1 Hawk. P. C. c. 64, s. 33. 
 
 158, and Newton v. Harland, ante, p. 718, (/>) Id. ss. 22, 34. Crom. 69. Dalt. 
 
 note (#), whieh seem to show that the posi- c. 77. Co. Lit. 256. 
 
 tion in the text is erroneous. C. S. G. (q) 4 B. & Ad. 307, ante, p. 719. 
 
 (n) R. v. Smyth, 1 M. & Rob. 155. 5 C. (r) Per Parke, J. R. v. Oakley, supra. 
 vol. i. — 46
 
 722 Of Forcible Entry and Detainer. [book ii. 
 
 detainer of any incorporeal inheritance wherein he cannot be said to 
 have made a precedent forcible entry, (s) 
 
 L. was mortgagee in fee of a dwelling house, the possession being 
 left in the mortgagor. The mortgagor while in possession left the 
 house to T. for a goods store. It was otherwise unoccupied. Early 
 one morning, during the continuance of T.'s tenancy, L., without 
 giving any notice to the mortgagor or to T., went to the house, in 
 company with a carpenter and another man. The carpenter opened 
 the front door, and the other man entered the house. L. and the 
 carpenter remained on the doorstep, the latter being employed in 
 putting on a new lock. While this was happening, T., and his 
 brother-in-law, W., with several other persons came up, and T. and 
 W. climbed into the house through a window, and after a slight 
 struggle expelled L. and his men from the premises. L. indicted T. 
 and W. and others for a forcible entry, riot, affray, and assault. T. 
 and W. were tried and acquitted. They defended themselves by the 
 same solicitor, and incurred joint costs. T. and W. then brought an 
 action against L. for malicious prosecution, and obtained a verdict, 
 subject to leave to move to enter a verdict for L., upon the grounds, 
 first, that there was no reasonable and probable cause for the prose- 
 cution ; second, that there was no evidence of malice ; third, that 
 there was no joint cause of action. The Court of Exchequer having 
 set aside the verdict, and entered a verdict for L., and the Court of 
 Exchequer Chamber having reversed the decision of the Court of 
 Exchequer, — Held, reversing the decision of the Court of Ex- 
 chequer Chamber, that there was reasonable and probable cause for 
 the prosecution, inasmuch as the facts showed that T. and W. were, 
 at the time of the expulsion of L., disturbing a possession which had 
 been lawfully acquired by him. (t) 
 
 III. A forcible entry must be with a strong hand, with unusual 
 weapons, or with menace of life or limb ; it must be accompanied 
 with some circumstances of actual violence or terror ; and an entry 
 which has no other force than such as is implied by the law in every 
 trespass is not within these statutes, (u) 2 An entry may be forcible 
 not only in respect of a violence actually done to the person of a man, 
 as by beating him if he refuse to relinquish his possession ; but also 
 in respect of any other kind of violence in the manner of the entry, 
 as by breaking open the doors of a house, whether any person be in 
 it at the time or not, especially if it be a dwelling-house, and perhaps 
 also by any act of outrage after the entry, as by carrying away the 
 party's goods, &c, which being found in an assize of novel disseisin, 
 will make the defendant a disseisor with force, and subject him to 
 fine and imprisonment, (v) If a man enters to distrain for rent in 
 
 (s) 1 Hawk. P. C. c. 64, s. 31. Bac. (u) Bac. Abr. tit. Forcible Entry, &c. 
 
 Abr. tit. Forcible Entry, &c. (C). (D.) Dalt. 300. 1 Hawk. P. C. c. 64, 
 
 (/) Lows v. Telford, 45 L. J. Ex. 613. s. 25. 
 l_Ap. Cas. 414. 00 1 Hawk. P. C. c. 64, s. 26. 
 
 American Note. 
 1 As to the acts necessary in America to son v. Phillips, 9 Yerg. 93 ; Childress v. 
 constitute a forcible entry, see S. v. Car- Black, Ibid. 317 ; S. v. Ross, 4 Jones 
 gill, 2 Brevard, 445; Burt v. S., 3 Brev. (Law), 315. 
 413; C. v. Prison, 1 Ashm. 140; David-
 
 chap, xxxi.] Of Forcible Entry and Detainer. 723 
 
 arrear with force, this is a forcible entry, because, though he does 
 not claim the land itself, yet be claims a right and title out of it, 
 which by these statutes he is forbid to exert by force ; but if a mao 
 who has a rent be resisted from his distress with force, this is a 
 forcible disseisin of the rent, for which he may recover treble damages 
 in an assize, or may fine and imprison the party : but he cannot have 
 a writ of restitution ; for the statute does not give the justices power 
 to reseise the rent, but only the lands and tenements themselves, (iv) 
 If one find a man out of his house, and forcibly withhold him from 
 returning to it, and send persons to take peaceable possession of it 
 in the party's absence, this according to the better opinion is a forcible 
 entry, (x) And there may be a forcible entry where any person's 
 wife, children, or servants, are upon the lands to preserve the posses- 
 sion ; because whatever a man does by his agents is his own act ; 
 but his cattle being upon the ground do not preserve his possession, 
 because they are not capable of being substituted as agents ; and, 
 therefore, their being upon the land continues no possession. (//) 
 
 Whenever a man, either by his behaviour or speech, at the time 
 of his entry, gives those who are in possession of the tenements, which 
 he claims, just cause to fear that he will do them some bodily hurt, 
 if they will not give way to him, his entry is deemed forcible ; 
 whether he cause such a terror by carrying with him an unusual 
 number of servants, or by arming himself in such a manner as plainly 
 intimates a design to back his pretensions by force; or by actually 
 threatening to kill, maim, or beat those who shall continue in posses- 
 sion, or by giving out such speeches as plainly imply a purpose of 
 using force against those who shall make any resistance, (z) And 
 there is no necessity that anyone should be assaulted ; for if the 
 entry be with such number of persons and show of force as is cal- 
 culated to deter the rightful owner from sending them away, and 
 resuming his own possession, that is sufficient, (a) But a forcible 
 entry is not proved by evidence of a mere trespass, there must be 
 proof of such force, or at least such a show of force, as is calculated 
 to prevent any resistance, (b) And though a man enter peaceably, 
 yet if he turn the party out of possession by force, or frighten him 
 out of possession by threats, it is a forcible entry, (c) But threaten- 
 ing to spoil the party's goods, or destroy his cattle, or to do him any 
 similar damage, which is not personal, if he will not quit the posses- 
 sion, seems not to amount to a forcible entry, (d) 
 
 If a person who pretends a title to lands, merely go over them 
 either with or without a great number of attendants, armed or 
 unarmed, in his way to the church, or market, or for a like purpose, 
 without doing any act which either expressly or impliedly amounts 
 to a claim of the lands, he cannot be considered as making an entry 
 
 (iv) Bac. Abr. tit. Forcible Entry, &c. (z) 1 Hawk. P. C. c. 64, s. 27. 
 
 (B.). ( a ) Milner v. Maclean, 2 C. & P. 17, 
 
 (x) 1 Hawk. P. C. c. 64, s. 26, where it Abbott, C. J. 
 is given as the author's opinion ; and con- (b) R. v. Smyth, 5 C. & P. 201, Lord 
 
 trary opinions are noticed proceeding on the Tenterden, C. J. S. C. 1 M. & Rob. 155. 
 ground that no violence was done to the (c) Dalt. 299. Bac. Ab. tit. Forcible 
 
 house, but only to the person of the party. Entry, d-c. (B.). 
 
 (y) Bac. Abr. tit. Forcible Entry, d-c. (d) 1 Inst. 257. Bio. tit. Duress, 12, 
 
 (B.). Turner v. Meymot, 1 Bing. 158. 16. 1 Hawk. P. C. c. 64, s. 28.
 
 724 Of Forcible Entry and Detainer. [book ii. 
 
 within the meaning of the statutes ; otherwise if he make an actual 
 claim with any circumstances of force or terror, (c) Drawing a latch 
 and entering a house seems not to be a forcible entry according to 
 the better opinion : ( f) so if a man open the door with a key, or enter 
 by an open window, or if the entry be without the semblance of 
 force, as by coming in peaceably, enticing the owner out of possession, 
 and afterwards excluding him by shutting the door, without other 
 force, these will not be forcible entries, (g) 
 
 A single person may commit a forcible entry as well as a number, (h) 
 But all who accompany a man when he makes a forcible entry will 
 be deemed to enter with him, whether they actually come upon the 
 lands or not. (i) So, if several come in company where their entry 
 is not lawful, and all of them, except one, enter in a peaceable man- 
 ner, and that one only use force, it is a forcible entry in them all, 
 because they come in company to do an unlawful act ; but it is other- 
 wise where one had a right of entry, for there they only come to do 
 a lawful act, and therefore it is the force of him only who used it. (/) 
 And he who barely agrees to a forcible entry made to his use, without 
 his knowledge or privity, is not within the statutes, because he did 
 not concur in or promote the force. (Jc) 
 
 IV. Forcible detainer is where a man, who enters peaceably, after- 
 wards detains his possession by force : and the same circumstances 
 of violence or terror which will make an entry forcible, will also 
 make a detainer forcible. From whence it seems to follow that who- 
 ever keeps in his house an unusual number of people, or unusual 
 weapons, or threatens to do some bodily hurt to the former possessor, 
 if he dare return, is guilty of a forcible detainer, though no attempt 
 be made to re-enter : and it has been said that he also will come 
 under the like construction who places men at a distance from the 
 house in order to assault anyone who shall attempt to make an entry 
 into it ; and that he is in like manner guilty who shuts his doors 
 against a justice of peace coming to view the force, and obstinately 
 refuses to let him come in. (I) This doctrine will apply to a lessee 
 who, after the end of his term, keeps arms in his house to oppose the 
 entry of the lessor, though no one attempt an entry ; or to a lessee 
 at will detaining with force after the will is determined: (on) and it 
 will apply in like manner to a detaining with force by a mortgagor 
 after the mortgage is forfeited, or to the feoffee of a desseisor after 
 entry or claim by the disseisee. And a lessee resisting with force a 
 distress for rent, or forestalling or rescuing the distress, will also be 
 guilty of this offence, (n) 
 
 But a man will not be guilty of the offence of forcible detainer for 
 merely refusing to go out of a house, and continuing therein in 
 
 (e) 1 Hawk. P. C. c. 64, ss. 20, 21. (i) 1 Hawk. P. C. c. 64, s. 22. 
 
 (/) There have been different opinions (j) Bac. Abr. tit. Forcible Entry, <tc. 
 
 upon this point. Noy, 136, 137. Bac. (B). 
 
 Abr. tit. Forcible Entry, <L-c. (B.). 1 Hawk. (k) 1 Hawk. P. C. c. 64, s. 24. 
 
 P. C. c. 64, s. 26. (I) 1 Hawk. P. C. c. 64, s. 30. 
 
 (g) Com. Dig. tit. Forcible Entry, <fcc. (m) See per Parke, J. R. v. Oakley, 4 
 
 (A.) 3. B. & Ad. 307, ante, p. 719. 
 
 (h) Id. (A.) 2. 1 Hawk. P. C. c. 64, (n) Com. Dig. tit. Forcible Detainer, 
 
 s. 29. (B.) 1.
 
 chap, xxxi.] Of Forcible Entry and Detainer. 725 
 
 despite of another, (o) x So that it is not a forcible detainer if a lessee 
 at will, after the determination of the will, denies possession to the 
 lessor when he demands it ; or shuts the door against the lessor when 
 he would enter ; or if he keeps out, by force, a commoner upon his 
 own land. ( p) And it has been seen that the 8 Hen. 6, c. 9, does not 
 apply to a person who has been in possession for three years by him- 
 self, or any other under whom he claims, (q) But a person in quiet 
 possession for three years, and then disseised by force, and restored, 
 cannot afterwards detain with force within three years after his resti- 
 tution ; for his possession was interrupted, (r) 
 
 The remedies against such as are guilty of forcible entries or 
 detainers are either by action, by complaint to justices of the peace 
 (who may proceed upon view or inquisition), or by indictment at the 
 general sessions, (s) And if a forcible entry or detainer be made by 
 three persons or more, it is also a riot ; and may be proceeded against 
 as such, if no inquiry has before been made of the force, (t) Some of 
 the points which have been determined with respect to an indictment 
 for these offences, and also concerning the award of restitution, may 
 be shortly noticed, (u) 
 
 The statutes seem to require that the entry should be laid in the 
 indictment manu forti. or cum multitudinc gentium : but some have 
 holden that equivalent words will be sufficient, especially if the 
 indictment concludes contra formam statuti ; but it is not sufficient 
 to say only that the party entered vi et armis since that is the com- 
 mon allegation in every trespass, (v) No particular technical words 
 are necessary in an indictment at common law ; all that is required 
 is, that it should appear by the indictment that such force and vio- 
 lence have been used as constitute a public breach of the peace, (w) 
 
 The tenement in which the force was committed must be described 
 with convenient certainty ; for otherwise the defendant will not 
 know the particular charge to which he is to make his defence, nor 
 
 (o) 1 Hawk. P. C. c. 64, s. 30. 148. Bum's Just. tit. Forcible Entry, d-c. 
 
 (p) Com. Dig. tit. Forcible Detainer, III., IV., V. 
 (B. ) 2. (£) Burn's Just. tit. Forcible Entry and 
 
 (q) Ante, p. 719. And by the 31 Eliz. Detainer, VII. Ante, p. 555. 
 c. 11, [ante, p. 719) no restitution is to be (u) As to the proceedings by justices of 
 
 given on an indictment of forcible entry peace, see Burn's Just. tit. Forcible Entry 
 
 or detainer, where the party has been three &c. V. Com. Dig. Tit. Forcible Entry, 
 
 years in quiet possession before the indict- (D.). 
 ment found, and his estate not determined. (v) Baude's case, Cro. Jac. 41. Rast. 
 
 (r) Com. Dig. tit. Forcible Detainer, Ent. 354. Bac. Abr. tit. Forcible Enfrtf, 
 
 (B.) 2. rfrc, (E.). 
 
 (s) See the statutes, ante, p. 719. Com. (w) By Lawrence, J., in R. v. Wilson, 8 
 
 Dig. tit. Forcible Entry (C.) 4 Black. Com. T. R. 362. 
 
 America x Note. 
 
 1 Mr. Bishop, vol. ii., s. 502, thinks that to have decided that at common law a for- 
 
 a person who defends by force a possession cible detainer is not indictable where the 
 
 peaceably acquired against another who has entry was peaceable and lawful, — a propo- 
 
 no just claim, or whom he believes to sition (as Mr. Bishop says) which seems too 
 
 have no just claim, ought not to be found narrow. S. v. Godsey, 13 Ire. 348. It has 
 
 guilty of forcible detainer. He cites Farie been decided in America that there can be 
 
 v. S., 3 Ohio St. 159. Harrington v. P., no " forcible detainer " of personal chattels. 
 
 6 Barb. 607 ; S. v. Elliot, 11 N. H. S. v. Marsh, 64 N. C 378. 
 540 ; and the North Carolina Court seems
 
 726 Indictment. [book ii. 
 
 will the justices or sheriff know how to restore the injured party to 
 his possession. Thus an indictment of forcible entry into a tene- 
 ment, (x) which may signify anything whatsoever wherein a man 
 may have an estate of freehold, (g) or into a house or tenement, (z) 
 or into two closes of meadow or pasture, (a) or into a rood or half a 
 rood of land, (b) or into certain lands belonging to such a house, (c) 
 or into such a house without showing in what town it lies, (d) or into 
 a tenement, with the appurtenances, called Truepenny in D. (e) is not 
 good. But an indictment for a forcible entry in domum mansionalem 
 sive messuagium, &c, is good, for these are words equipollent. (/) 
 And an indictment for an entry into a close called Serjeant Heme's 
 close, without adding the number of acres, is good ; for here is as 
 much certainty as is required in ejectment, (g) And an indictment 
 may be void as to such part of it only as is uncertain, and good for so 
 much as is certain : thus an indictment for a forcible entry into a 
 house and certain acres of land may be quashed as to the land, and 
 stand good as to the house. (Ji) Upon an indictment against a wife 
 for a forcible entry into a house, which she had originally taken in 
 her own name, but into which her husband had afterwards entered 
 for the purpose of giving up possession to the owner, the house is 
 well described as the house of the husband, (i) 
 
 An indictment on the 8 Hen. 6, c. 9, (/) must show that the place 
 was the freehold of the party grieved at the time of the force (k) ; 
 and if founded on 21 Jac. 1, c. 15 (ante, p. 720), it should show that he 
 was at such time a tenant for a term of years or otherwise entitled as 
 mentioned in that statute. (/) An inquisition under the 8 Hen. 6, 
 c. 9, will not warrant a justice in restoring possession, unless it set 
 forth the estate possessed by the party in the property, (m) But an 
 indictment which charges that the defendants forcibly entered into a 
 messuage of one W. P., he the said W. P., then and there being seised 
 thereof, sufficiently avers the present seisin of W. P. to warrant the 
 Court in awarding restitution. (?i) But in an indictment at common 
 law, where the breach of the public peace is the gist of the offence, 
 and the prosecutor is not entitled to restitution and damages, it 
 appears to be sufficient to state only that the prosecutor was in pos- 
 session of the premises. (0) 
 
 A repugnancy in setting forth the offence in an indictment on these 
 
 (x) Dalt. 15. 2 Roll. R. 46. 2 Roll. (i) R. v. Smyth, 1 M. & Rob. 155. 
 
 Abr. 80, pi. 8. 3 Leon. 102. S. C. 5 C. & P. 201. 
 
 (y) Co. Lit. 6 a. (j) Ante, p. 719. 
 
 (z) 2 Roll. Abr. 80, pi. 4, 5. Roll. R. (k) R. v. Dorny, 1 Lord Raym. 210. 
 
 334. Cro. Jac. 633. Palm. 277. 1 Salk. 260. Anon. 1 Vent. 89. 2 Keb. 
 
 (re) 2 Roll. Abr. 81, pi. 4. 495. Hetl. 73. Latch. 109. 
 
 (b) Bulst. 201. (?) See R. v. Lloyd, Cald. 415 ; R. v. 
 
 (c) 2 Leon. 186. 3 Leon. 101. Bro. Wannop, Say. 142. It is difficult to under- 
 tit. Forcible Entry, 23. stand what is meant by some of these cases. 
 
 (d) 2 Leon. 186. (m) E. v. Bowser^ 8 D. P. R. 128, 
 
 (e) 2 Roll. Abr. 80, pi. 7. Coleridge. J.; Bac. Abr. tit. Forcible Entry, 
 if) Ellis's case, Cro. Jac. 633. Palm. &c. (E.), where, and in 1 Hawk. P. C. c. 64, 
 
 277. s. 38, see the cases on this subject collected. 
 
 (g) Bac. Abr. tit. Forcible Entry, <kc, And see also R. v. Griffiths, et al. 3 Salk. 
 (E.). 1 Hawk. P. C. c. 64, s. 37. ' 169. 
 
 (h) Bac. Abr. tit. Forcible Entry, &c, (n) R. v. Hoare, 6 M. & S. 267. R. V. 
 
 (E.). 1 Hawk. P. C. c. 64, s. 37. Dillon, 2 Ch. R. 314. 
 
 (o) R. v. Wilson, 8 T. R. 357.
 
 chap, xxxi.] Of Forcible Entry and Detainer. 727 
 
 statutes is an incurable fault : as where it is alleged that the party 
 was possessed of a term of years, or of a copyhold estate, and that the 
 defendants disseised him ; or that the defendants disseised J. S. of 
 land then and yet being his freehold, for it implies that he always 
 continued in possession ; and if so, it is impossible he could be dis- 
 seised at all. (p) It seems that an indictment on 8 Hen. 6, c. 9, set- 
 ting forth an entry and forcible detainer, is good, without showing 
 whether the entry was forcible or peaceable : but it must set forth an 
 entry ; for otherwise it does not appear but that the party has 
 been always in possession, in which case he may lawfully detain it by 
 force, (q) It appears to be sufficient to state, that the defendant on 
 such a day entered, &c, and disseised, &c, without adding the words 
 then and there ; for it is the natural intendment that the entry and 
 disseisin both happened together, (r) A disseisin is sufficiently set 
 forth by alleging that the defendant entered, &c, into such a tene- 
 ment, and disseised the party, without using the words ' unlawfully,' 
 or ' expelled,' for they are implied, (s) But no indictment can war- 
 rant an award of restitution, unless it find that the wrong-doer ousted 
 the party grieved, and also continues his possession at the time of the 
 finding of the indictment ; for it is a repugnancy to award restitution 
 of possession to one who never was in possession, and it is in vain to 
 award it to one who does not appear to have lost it. (t) 
 
 If a bill, both for a forcible entry and forcible detainer, be preferred 
 to a grand jury, and found ' not a true bill ' as to the entry with 
 force, and ' a true bill ' as to the detainer, it will not warrant an 
 award of restitution ; but is void, because the grand jury cannot find 
 a bill, true for part, and false for part, as a petit jury may. (u) 
 
 Upon an indictment on the 21 Jac. 1, c. 15, or 8 Hen. 6, c. 9, 
 whereby restitution of the possession of lands entered upon by force, 
 or holden by force, may be awarded to the respective tenants thereof ; 
 the tenant whose land has been entered upon, or withh olden by force, 
 is now a competent witness for the prosecution by the 6 & 7 Vict. 
 c. 85, and 14 & 15 Vict. c. 99. (v) 
 
 On an indictment at common law, the prosecutor need only prove 
 a peaceable possession at the time of the ouster, (w) On an indict- 
 ment upon the statute of 8 Hen. 6, c. 9, a seisin in fee must be shown ; 
 and on an indictment founded on 21 Jac. 1, c. 15, a tenancy for years 
 or other term within that statute must be shown ; (x) but it seems 
 that proof that the prosecutor held colourably as a freeholder or lease- 
 holder will suffice ; and the Court will not, on the trial, enter into the 
 validity of an adverse claim made by the defendant, which he ought 
 to assert, not by force, but by action, {y) 
 
 (p) 1 Hawk. P. C. c. 64, s. 39. Bac. bill' and not a 'true bill' upon different 
 
 Abr. Forcible Entry, <L-c. (E. ). parts of one and the same charge. See R. 
 
 (?) 1 Hawk. P. C. c. 64, s. 40. Bac. v. Fieldhouse, Cowp. 323. 
 
 Abr. ibid. And see the statute, ante, (v) He was not competent formerly. R. 
 
 p. 719. v. Williams, 9 B. & C. 549. 4 M.' & R. 
 
 (r) Baude's case, Cro. Jac. 41. 1 Hawk. 471. R. v. Beavan, R. & M. N. P. C. 242. 
 
 ibid. s. 42. (w) Talf. Dickenson, 377. 
 
 (s) Bac. Abr. Forcible Entry, &c. (E.). (x) R. v. Child, 2 Cox C. C. 102. In 
 
 (t) 1 Hawk. P. C. c. 64, s. 41. this case it is stated that the indictment 
 
 (u) 1 Hawk. P. C. c. 64, s. 40. But was under the 5 R. 2, c. 8. It is a very 
 
 this it seems does not aj^ply to the case of loose report. 
 
 different counts in the same indictment, (y) Per Vaughan, B., in R. v. Wil- 
 
 but only where the grand jury find 'a true liams, Monm. S. A.. 1828, and confirmed
 
 728 Of Restitution. [book ii. 
 
 The same justice or justices before whom an indictment of forcible 
 entry or detainer shall be found may award restitution : but no other 
 justices, except those before whom the inquest was found, can award 
 restitution, unless the indictment be removed by certiorari into the 
 Court of Queen's Bench ; and that Court, by the plenitude of its 
 power, can restore, because that is supposed to be implied by the 
 statute ; on the ground that whenever an inferior jurisdiction is 
 erected, the superior jurisdiction must have authority to put it in 
 execution. So, if an indictment be found before the justices of the 
 peace at their quarter sessions, they have authority to award a writ of 
 restitution, because the statute having given power to the justices or 
 justice to reseise, it may as well be done by them in court as out of 
 it. (z) It is laid down in some books that the justices of oyer and 
 terminer, or general gaol delivery, though they may inquire of forcible 
 entries, and fine the parties, cannot award a writ of restitution, (a) 
 
 Eestitution ought only to be awarded for the possession of tene- 
 ments visible and corporeal ; for a man who has a right to such as are 
 invisible and incorporeal, as rents or commons, cannot be put out of 
 possession of them, but only at his own election, by a fiction of law, 
 to enable him to recover damages against the person that disturbs 
 him in the enjoyment of them ; and all the remedy that can be de- 
 sired against a force in respect to such possessions is to have the force 
 removed, and those who are guilty of it punished, which may be done 
 by 15 Bich. 2, c. 2. (b) And restitution is to be awarded only to him 
 who is found by the indictment to have been put out of the actual 
 possession, and not to one who was only seised in law. (c) Upon the 
 removal of the proceedings into the Court of Queen's Bench by certi- 
 orari, that Court may award a restitution discretionally. (d) And the 
 same principle applies to a judge of assize upon the finding of an 
 indictment for forcible entry ; namely, that the proceedings being 
 ex parte, a discretion may be exercised. Where, therefore, an indict- 
 ment for a forcible entry and detainer is found at the assizes, it is in 
 the discretion of the judge whether he will grant restitution or not ; 
 and if he refuse to grant it, the Court of Queen's Bench will not in- 
 quire whether he has exercised his discretion rightly, or grant a man- 
 damus to the judge to grant restitution, (e) But in the case of local 
 
 on a motion for a new trial. Talf. Dicken- is said that justices of gaol delivery may 
 
 son, 377 ; and see Jayne v. Price, 5 Taunt. award restitution upon an indictment before 
 
 326. them : and Sav. 78, is cited : and afterwards 
 
 (,r) Bac. Abr. tit. Forcible Entry, &c. id. (D. 7), it is said that restitution shall 
 
 (F. ). not be by justices of assize, gaol delivery, 
 
 (a) Id. ibid, and 1 Hawk. P. C. c. 64, or justices of peace, if the indictment was 
 
 s. 51, where it is said that justices of oyer not found before them ; and H. P. C. 140, 
 
 and terminer have no power either to inquire Dalt. c. 44, 131, are cited ; assuming here, 
 
 of a forcible entry or detainer, or to award as it should seem, that if the indictment 
 
 restitution on an indictment on the statutes; were found before justices of assize and gaol 
 
 because when a new power is created by delivery, they might award restitution : 
 
 statute, and certain justices are assigned to and see infra, R. v. Harland, and 11. v. 
 
 execute it, it cannot regularly be executed Hake, note (a), to R. v. Williams, 4 Man. 
 
 by any other ; and inasmuch as justices of & Piy. 483, where a judge at the assizes 
 
 oyer and terminer have a commission en- granted a writ of restitution, 
 
 tirely distinct from that of justices of peace, (b) 1 Hawk. P. C. c. 64, s. 45. Lamb. 
 
 they shall not from the general words of Just. 153. Co. Lit. 323. 
 
 their commission ad inquirend' de omnibus, (c) Lamb. Just. 153. Dalt. c. 83. 
 
 <i-c, be construed to have any such powers (d) R. v. Marrow, Ca. temp. Hardw. 
 
 as are specially limited to justices of peace. 174. 
 
 But in Com. Dig. tit. Fore. Entr. (D. 5), it (e) R. v. Harland, 8 Ad. & E. 826.
 
 chap, xxxi.] Of Forcible Entry and Detainer. 729 
 
 magistrates, who are to go to the spot, and make inquiry by the inqui- 
 sition of the jury, and examination of witnesses ; if the jury find the 
 facts, it is imperative on the justices to grant restitution ; and the 
 reason is that there has been a fair inquiry. (/) 
 
 It appears by the proviso in the 8 Hen. 6, c. 9, and also by the 31 
 Eliz. c. 11, that any one indicted upon these statutes may allege quiet 
 possession for three whole years to stay the award of restitution ; in 
 the construction of which it has been holden, that such possession 
 must have continued without interruption during three whole years 
 next before the indictment. (#) And it has also been said that the 
 three years' possession must be of a lawful estate ; and therefore that 
 a disseisor can in no case justify a forcible entry or detainer against 
 the disseisee having a right of entry, as it seems that he may against 
 a stranger, or even against the disseisee having, by his laches, lost his 
 right of entry, (h) Wherever such possession is pleaded in bar of a 
 restitution, either in the Queen's Bench or before justices of the peace, 
 no restitution ought to be awarded till the truth of the plea be tried ; 
 and such plea need not show under what title, or of what estate, such 
 possession was ; because not the title, but the possession only, is 
 material (i) If the defendant tender a traverse of the force (which 
 must be in writing), no restitution ought to be till such traverse be 
 tried ; in order to which the justice, before whom the indictment is 
 found, ought to award a venire for a jury : but if such jury find so 
 much of the indictment to be true as will warrant a restitution, it 
 will be sufficient, though they find the other part of it to be false (j) 
 Where the defendant pleads three years' possession in stay of restitu- 
 tion, according to 31 Eliz. c. 11, and it is found against him, he must 
 pay costs, (k) 
 
 The same justices who have awarded a restitution on an indictment 
 of forcible entry, &c, or any two or one of them, may afterwards 
 supersede such restitution upon an insufficiency in the indictment 
 appearing unto them : but no other justices or Court whatsoever have 
 such power, except the Court of Queen's Bench ; a certiorari from 
 whence wholly closes the hands of the justices of peace, and avoids 
 any restitution which is executed after its teste, but does not bring the 
 justices into contempt without notice. (I) 
 
 The Court of Queen's Bench has such a discretionary power over these 
 matters, from an equitable construction of the statutes, that if a resti- 
 tution shall appear to have been illegally awarded or executed, that 
 Court may set it aside, and grant a re-restitution to the defendant. 
 But a defendant cannot in any case whatsoever, ex rigore juris, de- 
 mand a restitution, either upon the quashing of the indictment, or a 
 verdict found for him on a traverse thereof, &c. ; for the power of 
 
 S. C. 1 P. & D. 93, 2 M. & R. 141. See (i) 1 Hawk. c. 64, s. 56. 
 
 R. v. Hake, note (a) to R. v. Williams, 4 (j) Bac. Abr. tit. Forcible Entry, dc. 
 
 M. & R. 483, where a judge, upon such an (G.). 1 Hawk. c. 64, ss. 58, 59. R. v. 
 
 inquisition, granted a writ of restitution, Winter, 2 Salk. 588. 
 
 not as a matter of right, but in the exercise \k) R. v. Goodenough, 2 Lord Raym. 
 
 of his discretion. 1036. And see the words of the statute, 
 
 (/) Ibid, per Patteson, J. ante, p. 719. 
 
 (g) Bac. Abr. tit. Forcible Entry, dc. (I) Bac. Abr. Id. ibid. 1 Hawk. c. 64, 
 
 (G.). 1 Hawk. P. C. c. 64, s. 53. ss. 61, 62. 
 
 (h) Bac. Abr. tit. Forcible Entry, dc. 
 (G.). 1 Hawk. c. 64, s. 54.
 
 730 Of Restitution. [book ii. 
 
 granting a restitution is vested in the Queen's Bench only, by an 
 equitable construction of the general words of the statutes, and is not 
 expressly given by those statutes ; and is never made use of by that 
 Court but when, upon consideration of the whole circumstances of the 
 case, the defendant shall appear to have some right to the tenements, 
 the possession whereof he lost by the restitution granted to the 
 prosecutor, (m) 
 
 But where a conviction for a forcible entry or detainer is quashed 
 by the Queen's Bench they have no discretionary power, but are 
 bound to award re-restitution, although the conviction be quashed for 
 a merely technical error, and the lease of the dispossessed person had 
 expired during the litigation, (n) 
 
 The Court of King's Bench has been so favourable to one who, upon 
 his traverse of an indictment upon these statutes being found for him, 
 has appeared to have been unjustly put out of his possession, that 
 they have awarded him a restitution, notwithstanding it has been 
 shown to the Court that, since the restitution granted upon the 
 indictment, a stranger has recovered the possession of the same land 
 in the lord's court, (o) 
 
 The justices or justice may execute the writ of restitution in per- 
 son, or may make their precept to the sheriff to do it (2?) The sheriff, 
 if need be, may raise the power of the county to assist him in the 
 execution of the precept ; and therefore, if he make a return thereto 
 that he could not make a restitution by reason of resistance, he shall 
 be amerced, (q) And it is said, that a justice of peace or sheriff may 
 break open a house to make restitution, (r) 
 
 If possession under a writ of restitution is avoided immediately 
 after execution by a fresh force, the party shall have a second writ of 
 restitution without a new inquisition ; but the second writ must be 
 applied for within a reasonable time, (s) And where restitution is 
 not ordered till three years after the inquisition, it is bad. (t) 
 
 (m) Bac. Abr. Id. ibid. 1 Hawk. c. 64, (p) 1 Hawk. c. 64, s. 59. 
 
 ss. 63, 64, 65. (<?) Id. ibid. sec. 52. 
 
 (n) R. v. Jones, 1 Stra. 474. R. v. (r) Com. Dig. tit. Forcible Entry, <L-c. 
 Wilson, 3 A. & E. 817. S. P. 5 N. & M. (D.) 6. 
 
 164. (s) R- v. Harris, 1 Lord Ravm. 482. 
 
 (©) Bac. Abr. Id. ibid. 1 Hawk. c. 64, (t) R. v. Harris, 3 Salk. 313. 
 s. 66.
 
 CHAPTER THE THIRTY-SECOND. 
 
 OF NUISANCES. («) 
 
 Nuisance, nocumentum, or annoyance, signifies anything that 
 worketh hurt, inconvenience, or damage. And nuisances are of two 
 kinds : public or common nuisances, which affect the public, and are 
 an annoyance to all l the King's subjects ; and private nuisances, 
 which may be defined as anything done to the hurt or annoyance of 
 the lands, tenements, or hereditaments of another, (b) Private nui- 
 sances, as they are remedied only by civil proceedings, do not come 
 within the scope of this Treatise; but public or common nuisances, 
 as they annoy the whole community in general, and not merely some 
 particular person, are properly punishable by indictment, and not the 
 subject of action ; for it would be unreasonable to multiply suits by 
 giving every man a separate right for what damnifies him in common 
 only with the rest of his fellow-subjects, (c) 
 
 (a) The Public Health Act 1875, 38 & 
 39 Vict. c. 55, which consolidates the Acts 
 relating to the public health, makes certain 
 provisions respecting nuisances. This Act 
 does not extend to Scotland or Ireland, nor 
 (save as by the Act is expressly provided) 
 to the Metropolis. By s. Ill, the provi- 
 sions of this Act relating to nuisances shall 
 be deemed to be in addition to, ami not to 
 abridge or affect any right, remedy, or pro- 
 ceeding under any other provisions of this 
 Act, or under any other Act, or at law, or 
 in equity. Provided that no person shall 
 be punished for the same offence, both 
 under the provisions of this Act relating to 
 nuisances, and under any other law or 
 enactment. See also s. 341. 
 
 (b) 3 Black. Com. 216. 2 Inst. 406. As 
 to private nuisances, see Hole v. Barlow, 
 4 C. B. (N. S.) 334. Stockport Water 
 Works Co. v. Potter, 7 H. & N. 160. Bam- 
 ford v. Turnley, 3 B. & S. 62, 31 L. J. Q. B. 
 286. Cavey v. Ledbitter, 32 L. J. C. P. 
 104. 13 C. B. (N. S.) 470. Walter v. 
 Selfe, 4 De G. & S. 315. Beardmore v. 
 Treadwell, 31 Law J., Chanc. 892. Roberts 
 v. Yardley, 3 H. & C. 162. 
 
 (c) 4 Black. Com. 166. There are, how- 
 ever, circumstances mentioned in the books 
 upon which a party has been admitted to 
 have a private satisfaction by civil suit for 
 
 that which is a public nuisance ; namely, 
 where he has sustained some extraordinary 
 damage by it beyond the rest of the King's 
 subjects. As if by means of a ditch dug 
 across a public way, which is a common 
 nuisance, a man or his horse suffer any 
 injury by falling therein ; there, for this 
 particular damage, not common to others, 
 it has been held that the party may have 
 his action. Co. Lit. 56. 5 Rep. 73. 3 
 Black. Com. 219. And see also Fowler v. 
 Sanders, Cro. Jac. 446. But the particular 
 damage in this case must be direct, and not 
 consequential, as by being delayed in a 
 journey of importance. Bull. N. P. 26. 
 In R. v. Dewsnap, 16 East, 196, Lord 
 Ellenborough, C. J., said, 'I did not expect 
 that it would have been disputed at this day 
 that though a nuisance may be public, yet 
 that there may be a special grievance, aris- 
 ing out of the common cause of injury, 
 which presses more upon particular indi- 
 viduals than upon others not so immedi- 
 ately within the influence of it. In the 
 case of stopping a common highway which 
 may affect all the subjects, yet if a particular 
 person sustain a special injury from it, he 
 has an action.' And in Duncan v. Thwaites, 
 3 B. & C. 584, Abbott, C. J., said, 'I take 
 it to be a general rule, that a part}' who 
 sustains a special and particular injury, by 
 
 American Note. 
 
 1 In America it has been held that a 
 nuisance is a public nuisance if it annoys 
 such part of the public as necessarily come 
 in contact with it. Hackney v. S., 8 Ired. 
 
 494 ; but where a disorderly house only 
 disturbed two families in the country it was 
 held not a public nuisance. Bishop, Vol. i., 
 ss. 1077, 1078, see also s. 244.
 
 732 Offensive Trades and Manufactures. [book ii. 
 
 Sec. I. 
 Of Public Nuisances in General. 
 
 Public nuisances may be considered as offences against the public 
 order and economical regimen of the state, being either the doing of a 
 thing to the annoyance of all the King's subjects, or the neglecting to 
 do a thing which the common good requires, (d) But the annoyance 
 or neglect must be of a real and substantial nature, (c) 
 
 Offensive trades and manufactures may be public nuisances. A 
 brewlwuse, (/ ) erected in such an inconvenient place that the busi- 
 ness cannot be carried on without greatly incommoding the neigh- 
 bourhood, may be indicted as a common nuisance ; and so in the like 
 case may a glasshouse or swineyard. (g) 
 
 An indictment will not lie for that which is a nuisance only to a 
 few inhabitants of a particular place : as where, upon an indictment 
 against a tinman for the noise made by him in carrying on his trade, 
 it appeared in evidence, that the noise only affected the inhabitants 
 of three numbers of the chambers in Clifford's Inn, and that by shut- 
 ting the windows the noise was in a great measure prevented, Lord 
 Ellenborough, C. J., held that the indictment could not be sustained, 
 as the annoyance was, if anything, a private nuisance. (7t) But an 
 indictment for a nuisance, by steeping stinking skins in water, laying 
 it to be committed near the highway, and also near several dwelling- 
 houses, has been held sufficient ; for if a man erects a nuisance near 
 the highway by which the air thereabouts is corrupted, it must, in its 
 nature, be a nuisance to those who are in the highway, (i) And an 
 indictment was held good for a nuisance in erecting buildings, and 
 
 an act which is unlawful on the ground of Cro. Car. 510 ; Hut. 136 ; Palm. 536 ; 
 
 public injury, may maintain an action for Vent. 26 ; Keb. 500 ; 2 Salk. 458, 460 ; 2 
 
 his own special injury.' And see Rose v. Lord Raym. 1163, are cited. 1 Hawk. 
 
 Miles, 4 M. & S. 'lOl. Butterfield v. P. C. c. 75, s. 10. Public Health Act 1875, 
 
 Forester, 11 East, 60. Benjamin v. Storr, (38 & 39 Vict. c. 55) s. 47. It would seem 
 
 43 L. J. C. P. 163. St. Helens Smelting not necessary in order to constitute a nui- 
 
 Co. Limited v. Tipping, 35 L. J. Q. B. sauce that there should be any injury to 
 
 67. Metropolitan Board of Works v. health. Banbury Urban Sanitary Author- 
 
 M'Carthy, 43 L. J. C. P. 385. ity v. Page, 8 Q. B. D. 97- 
 
 (d) 4 Black. Comm. 166. 1 Hawk. P. C. As to persons coming to a place where a 
 c. 75, s. 1. 2 Roll. Abr. 83. noxious trade is carried on, see R. v. Cross, 
 
 (e) By Lord Hardwicke, Anon. 3 Atk. 2 C. & P. 483 ; and Hole v. Barlow, 27 
 750. L. J. C. P. 208, where per Byles, J., ' It 
 
 (/) See the Public Health Act, 1875, used to be thought that if a man knew 
 
 ss. 112-115. there was a nuisance, and went and lived 
 
 (</) In Bac. Abr. tit. Nuisance (A.), it is near it, he could not recover, because it was 
 
 said, ' It seems the better opinion that a said it is he that goes to the nuisance and 
 
 brewhouse, glasshouse, chandler's shop, and not the nuisance to him. That used to be 
 
 sty for swine, set up in such inconvenient thought one hundred years ago to be the 
 
 parts of a town that they cannot but greatly law. That, however, is not the law now.' 1 
 incommodate the neighbourhood, are com- (h) R. v. Lloyd, 4 Esp. 200. 
 
 mon nuisances : ' and see 2 Roll. Abr. 139. (?) R. v. Pappineau, 1 Str. 686. 
 
 American Note. 
 
 1 In America it seems the court have in the open country for many years and the 
 sometimes held that there is an indictable houses have come to the nuisance. Bishop 
 nuisance, where the trade has been exercised i. s. 1141.
 
 chap. xxxn. § i.] Of Nuisances. 733 
 
 making fires which sent forth noisome, offensive, and stinking smokes, 
 and making great quantities of noisome, offensive, and stinking 
 liquors, near to the King's common highway, and near to the dwell- 
 ing-houses of several of the inhabitants, whereby the air was impreg- 
 nated with noisome and offensive stinks and smells. (J) Upon the 
 evidence it appeared that the smell was not only intolerably offen- 
 sive, but also obnoxious and hurtful, and made many persons sick, 
 and gave them head-aches ; and it was held that it was not necessary 
 that the smell should be unwholesome, but that it was enough if it 
 rendered the enjoyment of life and property uncomfortable ; and 
 further, that the existence of the nuisance depended upon the number 
 of the houses and concourse of people, and was a matter of fact to be 
 judged of by the jury, (k) But the carrying on of an offensive trade is 
 not indictable, unless it be destructive of the health of the neighbour- 
 hood, or render the houses untenantable or uncomfortable. (7) If there 
 be smells offensive to the senses, that is enough, as the neighbour- 
 hood has a right to fresh and pure air. (m) 
 
 The presence of other nuisances will not justify any one of 
 them, (m) Upon an indictment for a nuisance in carrying on the 
 trade of a varnish-maker, it was proved that offensive smells proceeded 
 from the defendant's manufactory, to the annoyance of persons travel- 
 ling along a public road ; the defence was, first, that the smells were 
 not injurious to health ; and, secondly, that in the immediate neigh- 
 bourhood there were several houses for slaughtering horses, a brewery, 
 a gas manufactory, a melter of kitchen stuff, and a blood boiler ; and 
 that although the accumulation of all the smells was offensive, yet 
 that the defendant's alone would not have been so, and therefore 
 was no nuisance ; but Abbot, C. J., said, ' It is not necessary that a 
 public nuisance should be injurious to health ; if there be smells 
 offensive to the senses, that is enough, as the neighbourhood has a 
 right to fresh and pure air. (n) It has been proved that a number 
 of other offensive trades are carried on near this place, knackers, 
 melters of kitchen stuff, &c. ; but the presence of other nuisances 
 will not justify any one of them ; or the more nuisances there were 
 the more fixed they would be ; however, one is not the less subject 
 to prosecution because others are culpable. The only question, there- 
 fore, is this : is the business, as carried on by the defendant, produc- 
 tive of smells offensive to persons passing along the public highway V{o) 
 
 A certificate and licence under the 26 Geo. 3, c. 71, s. 1, authoriz- 
 ing a person to keep a house for the slaughtering of horses, is no 
 defence; if the business is a public nuisance to the neighbourhood. ( />) 
 
 It has been said that a person cannot be indicted for continuing a 
 noxious trade which has been carried on at the same place for nearly 
 
 (/) R. v. White, 1 Burr. 333. C. J., see R. v. Watts, ibid. 486. Crossley 
 
 (k) R. v. White, 1 Burr. 337, where see v. Lightowler, 36 L. J. Ch. 584. 
 also that the word 'noxious' not only (n) As to this see also Bishop Auckland 
 
 means hurtful and offensive to the smell, Local Board v. Bishop Auckland Iron Co., 
 
 but includes the complex idea of insalubrity 10 Q. B. D. 138. 
 and offensiveness. (o) R. v. Neil, supra. R. v. Watts, 
 
 (I) R. v. Davey, 5 Esp. 217. See the Moo. & M. 281 ; R. v. Neville, Peake N. P. 
 
 cases cited in note (c), ante, p. 731. C. 91. 
 
 (m) R. v. Neil, 2 C. & P. 485. Abbott, (p) R. v. Cross, 2 C. & P. 483. Abbott, 
 
 C.J.
 
 734 Offensive Trades and Manufactures. [book ii. 
 
 fifty years, (q) But, as stated post, it is now well recognised that no 
 length of time can legalise a public nuisance, (r) It should seem 
 that in judging whether a thing is a public nuisance or not, the public 
 good it does may, in some cases, where the public health is not 
 concerned, be taken into consideration, to see if it outweighs the 
 public annoyance, (s) 
 
 Upon an indictment for burning arsenic whereby divers unwhole- 
 some smells arose, so that the air was greatly corrupted, evidence is 
 admissible that particles of arsenic were carried off in the vapour, and 
 deposited in the adjoining fields, and thereby the cattle and trees 
 were poisoned, and that several cattle had died, (t) 
 
 Where the alleged nuisance was at Liverpool, and certain effects 
 there produced were, by the prosecution, attributed to the fumes 
 from the defendant's manufacture ; the defence was that those effects 
 were attributable to other local causes. To meet this, Coleridge, J., 
 
 7 O 7 7 
 
 admitted evidence that the same effects were found in the neighbour- 
 hood of the defendant's similar manufacture carried on in the country, 
 where these local causes did not exist, and that the defendant had 
 paid compensation for them ; for this was clearly good evidence of 
 the tendency of the manufacture to produce such effects, (u) But 
 on an indictment in 1857 for a nuisance in carrying on an offensive 
 trade, a conviction in 1855 of the defendant before justices of the 
 peace for carrying on the same trade upon the same premises so as 
 to occasion noxious and offensive effluvia without using the best 
 practicable means for preventing the same, contrary to the 16 & 17 
 Vict. c. 128, s. 1, but before the period comprised in the indictment, 
 is not admissible, though the manufacture may appear to have been 
 carried on for some years in the same manner, (v) 
 
 Erecting gunpowder mills, or keeping gunpowder magazines near a 
 town, is a nuisance by the common law, for which an indictment or 
 information will lie. (w) 
 
 Where a count stated that the defendants unlawfully did deposit 
 in a warehouse belonging to them near to divers streets, highways, 
 and dwelling-houses, divers large and excessive quantities of a dan- 
 
 (q) R. v. Neville, Peake, 93. necessarily a nuisance ; 2nd, that even if it 
 
 (r) Weld v. Hornby, 7 East, 199. R. had been an offence precisely similar, except 
 
 v. Cross, 3 Camp. 227, and see post, 758. that it was anterior, it would not have been 
 
 (s) See K. v. Russell, 6 B. & C. 566, admissible ; but Wightman, J., did not 
 
 9 D. & R. 566. R. v. Ward, 4 A. & E. 384, concur in this latter point. 
 
 shows that it is no defence to an indict- (w) R. v. Williams, E. 12, W., an in- 
 
 ment for a nuisance by erecting an embank- dictment against Roger Williams for keep- 
 
 ment in a harbour, that although the work ing 400 barrels of gunpowder near the town 
 
 be in some degree a hindrance to navigation, of Bradford, and he was convicted. And 
 
 it is advantageous, in a greater degree, to in R. v. Taylor, 15 Geo. 2, the Court granted 
 
 other uses of the port ; and see R. v. Morris, an information against the defendant for a 
 
 1 B. & Ad. 441. R. v. Tindall, 6 A. & E. nuisance, on affidavits of his keeping great 
 
 143. 1 N. & P. 719. See these cases, post. 1 quantities of gunpowder near Maldon in 
 
 (t) R. v. Garland, 5 Cox C. C. 165. Surrey, to the endangering of the church 
 
 («) Anonymous, cited in R. v. Fairie, 8 and houses where he lived. 2 Str. 1167, 
 
 E. & B. 486. See R. v. Lister, infra. Burn's Just. tit. 
 
 (v) R. v. Fairie, supra. It was so held Gunpowder, where it is said, 'or rather it 
 
 on the ground, 1st, that the offence of which should have been expressed to the endanger- 
 
 the defendant had been convicted was not ing of the lives of His Majesty's subjects.' 
 
 American Note. 
 1 It is said in an American case that indictable. Bruce v. S., 87 Ind. 450 ; 
 merely inheriting a public nuisance is not Croker v. S., 49 Ark. 60.
 
 chap, xxxii. § i.] Of Nuisances. 735 
 
 gerous, ignitable, and explosive fluid, called wood naphtha, and unlaw- 
 fully did keep in the said warehouse, and near to the said streets, 
 highways, and houses the said fluid in such large, excessive and dan- 
 gerous quantities, whereby the Queen's subjects passing along the 
 said streets and highways and residing in the said houses were in 
 great danger of their lives and property, and were kept in great 
 alarm and terror ; it was held that the count was good ; for though 
 the count did not state that any noxious effluvia issued from the 
 naphtha, or that the air was corrupted by it, or that any bodily harm 
 was done by it to any one ; yet to deposit and keep such a substance 
 in such quantities in a warehouse so situate, to the danger of the 
 lives and property of the Queen's subjects, is an indictable offence. 
 The substance must be of such a nature, and kept in such large 
 quantities and under such local circumstances, as to create real 
 danger to life and property. The well founded apprehension of dan- 
 ger, which would alarm men of steady nerves and reasonable courage, 
 passing through the street in which the house stands, or residing in 
 adjoining houses, is enough to show that something has been done 
 which the law ought to prevent by pronouncing it a misdemeanor, (x) 
 The evidence on the trial of the above count was, that the defend- 
 ants kept and stored large quantities of wood naphtha and rectified 
 spirits of wine in a warehouse in the City of London ; the quantities 
 stored were from 4,000 to 5,000 gallons of naphtha, and from 40,000 
 to 50,000 gallons of spirits of wine. The two were mixed together 
 upon the premises. For this purpose there were two large vats 
 erected ; each of them capable of holding 2,000 gallons of the mix- 
 ture. The vats were covered over entirely at the top, except an 
 aperture in the centre of the cover, in which was fixed - a hopper, 
 with a sliding panel of wood. When it was necessary to mix, the 
 spirits of wine first and the naphtha afterwards were poured through 
 the hopper into the vat below, where, by their chemical action upon 
 each other, they became intermixed, and were drawn off at the 
 bottom by a cock, and carried away for the purposes of commerce. 
 The naphtha was kept in the warehouse in carboys holding twelve 
 gallons each, and carefully stocked till required for the purpose of 
 being thus mixed. It was a product of the distillation of wood, and 
 was very inflammable, more so than spirits, or even gunpowder 
 itself, passing into vapour on the application of a heat of 140° Fahren- 
 heit, and, if inflamed, water could not put out the fire arising from 
 it, and there was no dispute that practically a fire arising and com- 
 municating with the quantity kept upon these premises could not 
 be quenched, and would produce very disastrous consequences to 
 the neighbourhood; but it was the practice in the warehouse never 
 to allow any candles or fire or gas-light to enter therein, and so long- 
 as that continued, the storing of the naphtha and the spirits could 
 not produce danger ; but it was contended on the part of the Crown 
 that to keep articles so liable to accident and so dangerous in the 
 result, if an accident happened, to a populous neighbourhood, was a 
 public nuisance, as fire might incautiously be introduced, or a fire 
 arising in an adjoining house might communicate therewith, and 
 that the existence of such a manufactory, therefore, was a just ground 
 
 (a:) R. v. Lister, D. & B. C. C. 209, 26 L. J. M. C. 196.
 
 736 Offensive Trades and Manufactures. [book ii. 
 
 for alarm to the surrounding neighbourhood ; and upon a case reserved 
 upon the point, whether, when the manufacture, as carried on (which 
 was carefully) produced in the opinion of the scientific men no dan- 
 ger, its liability to danger ab extra made it a public nuisance, it was- 
 held that it did. The supposed safety from within depended on the 
 care of the defendant's servants in not allowing any candles, fire, or 
 gas-light to enter the warehouse, and it was only so long as this 
 care continued, that the naphtha could not produce danger; but it 
 was said that the law takes notice that occasional carelessness may 
 be reckoned upon, and forbids that to be done which, on the recurrence 
 of carelessness, will in all probability prove destructive to life and 
 property. As to the question whether when such a manufacture is 
 carried on so carefully as in the opinion of scientific men to produce 
 no- danger, its liability to danger ab extra makes it a public nuisance ; 
 there is no doubt that its liability to danger ab extra may make it 
 a public nuisance. Upon the trial of such indictments it is a ques- 
 tion of fact for the jury whether the keeping and depositing, or the 
 manufacturing of such substances, really does create danger to life 
 and property as alleged; and this must be a question of degree de- 
 pending upon the circumstances of each particular case. And in 
 this case the jury were properly directed that if the depositing and 
 keeping of the naphtha in the manner described, coupled with its 
 liability to ignition ab extra, created danger to life and property to 
 the degree alleged, they might find a verdict of guilty. (?/) 
 
 Negligently blasting stone in a quarry and thereby projecting large 
 pieces of stone, so as to endanger the safety of persons in houses and 
 on the highways adjoining the quarry, is a misdemeanor indictable at 
 common law. (z) 
 
 So also to keep such a large quantity of materials for making fire- 
 works in a building near a street and dwelling-houses as is calculated 
 to endanger the life of the persons passing by and living there, is a 
 common nuisance, (a) 
 
 It appears, that persons putting on board a ship an article of a com- 
 bustible and dangerous nature, without giving due notice of its con- 
 tents, so as to enable the master to use proper precautions in the 
 stowing of it, will be guilty of a misdemeanor. The case did not 
 come before the Court of King's Bench directly upon its criminal 
 nature: but that Court, in adverting to the conduct imputed to the 
 defendants, declared it to be criminal ; and said, ' in order to make 
 the putting on board wrongful the defendants must be cognisant of 
 the dangerous quality of the article put on board ; and if, being so 
 they yet gave no notice, considering the probable danger thereby 
 occasioned to the lives of those on board, it amounts to a species of 
 delinquency in the persons concerned in so putting such dangerous 
 article on board, for which they are criminally liable, and punishable 
 as for a misdemeanor at least.' (b) 
 
 (y) R. v. Lister, supra. Pollock, C. B., (s) R. v. Mutters, 34 L. J. M. C. 22, 
 
 agreed as to the point of law with the other 10 Cox, C. C. 6. See Seott v. Frith, 4 F. 
 
 judges ; hut thought that the defendants & F. 349. 
 
 were improperly convicted upon evidence of (a) See R. v. Bennett, Bell, 0. C. 1, 
 
 a dangerous use of the article in mixing it Vol. iii. Manslaughter. 
 
 with another article to make a very com- (b) Williams v. The East India Com- 
 
 hustihle material. pany, 3 East, 192, 201. See Merchant
 
 chap. xxxn. § i.] Of Nuisances. 737 
 
 In 38 Vict. c. 17, the Explosives Act, 1875, are contained many 
 provisions with respect to manufacturing, keeping, selling, carrying, 
 and importing gunpowder, nitro-glycerine, and other explosive sub- 
 stances, (c) The following provisions may here be noticed : — 
 
 Sec. 78. 'Any person who is found committing any act for which he 
 is liable to a penalty under this Act, and which tends to cause explo- 
 sion or fire in or about any factory, magazine, store, railway, canal, 
 harbour, or wharf, or any carriage, ship, or boat, may be apprehended 
 without a warrant by a constable, or an officer of the local authority, 
 or by the occupier of or the agent or servant of or other person author- 
 ized by the occupier of such factory, magazine, store, or wharf, or by 
 any agent or servant of or other person authorized by the railway or 
 canal company or harbour authority, and be removed from the place 
 at which he is arrested, and conveyed as soon as conveniently may be 
 before a court of summary jurisdiction.' (d) 
 
 Sec. 87. 'The occupier or other defendant, when charged in respect 
 of any offence by another person, may, if he think fit, be sworn and 
 examined as an ordinary witness in the case.' 
 
 Sec. 89. 'Where any explosive, or ingredient of an explosive, is 
 alleged to be liable under this Act to be forfeited, any indictment, 
 information, or complaint may be laid against the owner of such 
 explosive or ingredient, for the purpose only of enforcing such for- 
 feiture, and where the owner is unknown, or cannot be found, a court 
 may cause a notice to be advertised, stating that unless cause is 
 shown to the contrary at the time and place named in the notice, 
 such explosive will be forfeited, and at such time and place the court 
 after hearing the owner or any person on his behalf (who may be 
 present), may order all or any part of such explosive or ingredient to 
 be forfeited.' (e) 
 
 Sec. 90. ' For all the purposes of this Act, (1.) Any harbour, tidal 
 water (/) or inland water (/) which runs between or abuts on or forms 
 the boundary of the jurisdiction of two or more courts shall be 
 deemed to be wholly within the jurisdiction of each of such courts ; 
 and (2.) Any tidal water not included in the foregoing descriptions, 
 and within the territorial jurisdiction of Her Majesty, and adjacent to 
 or surrounding any part of the shore of the United Kingdom, and any 
 pier, jetty, mole, or work extending into the same, shall be deemed to 
 form part of the shore to which such water or part of the sea is adja- 
 cent, or which it surrounds.' 
 
 Sec. 91. 'Every offence under this Act may be prosecuted, and 
 every penalty under this Act may be recovered, and all explosives 
 
 Shipping Act 1873, s. 27 ; 38 Vict. c. 17, is given by the Summary Jurisdiction Acts, 
 
 s. 42, and 18 & 19 Vict. c. 119, s. 29. or any Acts therein referred to, s. 107. 
 
 (c) This Act, with certain modifications, (e) S. 89 is made applicable to offences 
 applies to Scotland and Ireland. As to under the Explosive Substances Act 1883. 
 petroleum, &c, see 31 & 32 Vict. c. 56. See 46 Vict. c. 3, s. 8. 
 
 (d) The expression 'Summary Jurisdic- (/) By s. 107, the expression 'tidal 
 tion Acts,' means the 11 & 12 Vict. c. 43, water' means any part of the sea or of a 
 and any Acts amending the same. The river within the ebb and flow of the tides 
 expression ' Court of Summary Jurisdic- at ordinary spring tides. The expression 
 tion,' means any justice or justices of the 'inland water' means any canal, river, 
 peace, or magistrate, to whom jurisdiction navigation, lake, or water which is not tidal 
 
 water. 
 
 vol. i. — 47
 
 738 Explosives Act, 1875. [book ii. 
 
 and ingredients liable to be forfeited under this Act may be forfeited 
 either on indictment or before a court of summary jurisdiction, in 
 manner directed by the Summary Jurisdiction Acts. Provided that 
 the penalty imposed by a court of summary jurisdiction shall not 
 exceed one hundred pounds exclusive of costs, and exclusive of any 
 forfeiture or penalty in lieu of forfeiture, and the term of imprison- 
 ment imposed by any such court shall not exceed one month.' 
 
 Sec. 92. ' Where a person is accused before a court of summary juris- 
 diction of any offence under this Act, the penalty for which offence as 
 assigned by this Act, exclusive of forfeiture, exceeds one hundred 
 pounds, the accused may, on appearing before the court of summary 
 jurisdiction, declare that he objects to being tried for such offence by 
 a court of summary jurisdiction, and thereupon the court of summary 
 jurisdiction may deal with the case in all respects as if the accused 
 were charged with an indictable offence and not an offence punishable 
 on summary conviction, and the offence may be prosecuted on indict- 
 ment accordingly.' 
 
 Sec. 96 relates to the application of penalties and the disposal of 
 forfeitures. 
 
 Sec. 102. 'This Act shall not, save as is herein expressly provided, 
 exempt any person from any action or suit in respect of any nuisance, 
 tort, or otherwise, which might, but for the provisions of this Act, 
 have been brought against him. 
 
 This Act shall not exempt any person from any indictment or other 
 proceeding for a nuisance, or for an offence which is indictable at 
 common law or by any Act of Parliament other than this Act, so that 
 no person be punished twice for the same offence. When proceedings 
 are taken before any Court against any person in respect of any 
 offence under this Act, which is also an offence indictable at common 
 law or by some Act of Parliament other than this Act, the Court may 
 direct that, instead of such proceedings being continued, proceedings 
 shall be taken for indicting such person at common law or under 
 some Act of Parliament other than this Act. 
 
 A continuing certificate granted under this Act shall not make law- 
 ful any factory, magazine, or store, or any part thereof, which immedi- 
 ately before the passing of this Act was unlawful.' 
 
 Sec. 103. 'All powers given by this Act shall be deemed to be in 
 addition to and not in derogation of any other powers conferred on 
 any local authority by Act of Parliament, but the Secretary of State 
 may, on the application of any local authority, or of any council of a 
 borough, or any urban sanitary authority, or on the application of any 
 persons making, keeping, importing, exporting, or selling any explo- 
 sive within the jurisdiction of any local authority, council, or urban 
 sanitary authority, after notice to such authority, make an order for 
 repealing, altering, or amending all or any of the provisions of any 
 Act of Parliament, charter, or custom, respecting the manufacture, 
 keeping, conveyance, importation, exportation, or sale of an explosive, 
 or the powers of such council or authority for regulating the same, or 
 otherwise in relation to an explosive.' The order is of no force unless 
 confirmed by Parliament, (s. 103.) 
 
 An indictment charged the defendant with keeping certain en- 
 closed lands, near to the King's highway and to certain houses,
 
 chap, xxxii. § I.] Of Nuisances. 739 
 
 for the purpose of persons frequenting such grounds, and meeting 
 therein to practise rifle shooting, and to shoot at pigeons with guns, 
 and that he did unlawfully cause divers persons to meet there for 
 that purpose, and did unlawfully suffer and cause a great number of 
 idle and disorderly persons armed with guns to assemble in the streets 
 and highways and other places near the said premises, discharging 
 firearms and making a great noise and disturbance, by means whereof 
 the King's subjects were disturbed and put in peril : the defendant 
 had converted some land, about 100 feet from a public road, into a 
 shooting ground, where persons came to practise with rifles, and to 
 shoot at pigeons ; and as the pigeons which were fired at often escaped, 
 it was the custom for idle persons to collect outside the grounds, and 
 in the neighbouring fields to shoot at the birds as they strayed, by 
 which a great noise and disturbance was created ; it was objected 
 that the defendant was not responsible, as he neither committed the 
 nuisance in his own person, nor was it his object to induce others 
 to commit it ; nor was it a necessary and inevitable consequence of 
 any act of his, being done by persons beyond his control : and those 
 persons being themselves amenable to punishment for it ; but it was 
 held that the evidence supported the allegation that the defendant 
 caused such persons to assemble, and that the defendant was liable 
 to be indicted for a nuisance ; for if a person collects together a crowd 
 of people to the annoyance of his neighbours, that is a nuisance for 
 which he is answerable ; and although it may not be his object to 
 create a nuisance, yet if it be the probable consequence of his act, he 
 is answerable as if it were his actual object : if the experience of man- 
 kind must lead any one to expect the result, he will be answerable 
 for it. (g) 
 
 All disorderly inns or ale-houses, bawdy-houses, gaming-houses, flag- 
 houses, unlicensed or improperly conducted, and the like, are public 
 nuisances, and therefore may be indicted, (h) 1 
 
 The keeper of an inn may, by the common law, be indicted and 
 fined as being guilty of a public nuisance, if he usually harbour thieves 
 or persons of scandalous reputation, or suffer frequent disorders in 
 his house, (i) And it seems that if one who keeps a common inn 
 refuse either to receive a traveller as a guest into his house, or to 
 find him victuals or lodging, upon his tendering him a reasonable 
 price for the same, (j) he is not only liable to render damages to the 
 party in an action, but may also be indicted, (k) But a traveller is 
 not entitled to select a particular apartment, or to insist upon occu- 
 pying a bedroom for the purpose of sitting up all night, if the inn- 
 fa) R. v. Moore, 3 B. & Ad. 184. (j) 10 Hen. 7, 8 ; 39 Hen. 6, 18, 19. 
 (h) See 4 Black. C. 167, post, p. 742. See next note. 
 (i) 1 Hawk. P. C. c. 78, s. 1. Bac. (k) 1 Hawk. P. C. c. 78, s. 2. 
 Abr. tit. Inns, &c. (A.), (C.) 2. See 34 & 
 35 Vict. c. 112, s. 10, noticed in Appendix. 
 
 American Note. 
 
 1 See Smith v. Comm., 6 B. Mon. 22. to make a disturbance. Bishop, i. ss. 1113, 
 
 In America it has been held to be an in- 1115, 1118, and even if the disturbances are 
 
 dictable offence so to conduct a house done altogether outside the house if the pro- 
 
 ( whether licensed or not) as to draw dis- prietor ought to have known they were likely 
 
 orderly crowds and stimulate them by drink to follow from his conduct he is indictable.
 
 "40 
 
 Inns : Baivdy-Houses. 
 
 [book ii. 
 
 keeper offers to furnish him with a proper room for that purpose. (J) 
 Attached to the defendant's hotel and under the same roof was 
 a bar entered by a separate door. The prosecutor who lived 
 near at hand went into the bar with a dog, and was refused refresh- 
 ment. He had been told by the defendant not to bring his dog as 
 it was an annoyance to his guests. It was held that the defendant 
 could not be convicted ; first, because the refreshment bar was 
 not an inn; secondly, because the prosecutor was not a traveller; 
 and thirdly, because the defendant had reasonable grounds for his 
 refusal, (m) It is no defence to an indictment for not receiving a 
 traveller that he did not tender a reasonable sum for his entertain- 
 ment, if no objection be made on that ground : nor that the guest 
 was travelling on a Sunday ; nor that it was at a late hour of the 
 night after the innkeeper and his family were gone to bed ; for an 
 innkeeper is bound to admit a traveller at whatever hour of the 
 night he may arrive ; nor that the guest refused to tell his name 
 and abode, as the innkeeper has no right to insist upon knowing 
 them ; but if the guest be drunk or behave in an indecent or improper 
 manner, the innkeeper is not bound to receive him. (n) If an inn- 
 keeper use the trade of an alehouse, as many innkeepers do, the inn 
 will be within the statutes made concerning ale and beer-houses, (o) 
 The keeping a bawdy-house (_p), 2 is a common nuisance, as it endan- 
 
 (l) Fell v. Knight, 8 M. & W. 269. 
 
 (m) R. v. Rymer, 2 Q. B. D. 136. 
 
 \n) R. v. Ivens, 7 C. & P. 213. Cole- 
 ridge, J. In the preceding case, Lord 
 Abinger, C. B., said, notwithstanding R. 
 v. Ivens, ' I am inclined to think that the 
 declaration is bad for want of an allegation 
 of a tender of the amount to which the 
 innkeeper would be reasonably entitled for 
 the entertainment furnished to his guest ; 
 it is not sufficient for the plaintiff to allege 
 that he was willing to pay ; he should state 
 further that he offered to pay. There may 
 be cases where a tender may be dispensed 
 with ; as, for instance, where a man shuts 
 up his doors or windows so that no tender 
 can be made ; but I rather think these facts 
 ought to be stated in the indictment or 
 declaration ; and I have, therefore, some 
 doubt as to the complete correctness of the 
 judgment in the case cited.' In 39 Hen. 6, 
 19, Danby said an innkeeper is not bound to 
 give provender to the horse of his guest 
 until he is paid in the hand ; for the law 
 does not compel him to put trust in his 
 guest for the payment, — which fully sup- 
 ports Lord Abinger's opinion. See Haw- 
 thorn v. Hammond, 1 ('. & K. 404, where 
 the plaintiff had knocked at an inn door for 
 some minutes in the night without obtain- 
 ing admission ; and Parke, B., left it to the 
 jury whether the defendant heard the noise, 
 
 and if so, whether she ought to have con- 
 cluded that the person knocking required 
 to be admitted as a guest or was a drunken 
 person, who had come there to make a 
 disturbance. 1 
 
 (o) Burn's Just. tit. Alehouses, where 
 those statutes are collected. Before the 5 & 
 6 Edw. 6, c. 25 (repealed, 9 Geo. 4, c. 61), 
 it was lawful for any one to keep an ale- 
 house without licence, for it was a means of 
 livelihood which any one was free to follow. 
 But if it was so kept as to be disorderly, it 
 was indictable as a nuisance. 1 Salk. 45. 
 1 Hawk. P. C. c. 78, s. 52, in marc/. See- 
 Dalt. c. 56, Blackerby, 170, Burn's Just, 
 tit. Alehouses, 1 Bac. Abr. tit. Inns, &c. 
 (A.). 
 
 {p) By 34 & 35 Vict. c. 112 (The Pre- 
 vention of Crimes Act 1871), s. 11, ' Every 
 person who occupies or keeps a brothel, and 
 knowingly lodges, or knowingly harbours, 
 thieves, or reputed thieves, or knowingly 
 permits, or knowingly sutlers them to meet 
 or assemble therein, or knowingly allows 
 the deposit of goods therein, having reason- 
 able cause for believing them to be stolen, 
 shall be guilty of an offence against 
 this Act, and be liable to a penalty not 
 exceeding ten pounds, and, in default of 
 payment, to be imprisoned for a period not 
 exceeding four months, with or without 
 hard labour, and the Court before which he 
 
 American Notes. 
 
 1 The guest's right to remain or to be 
 received depends upon his good behaviour. 
 S. v. Steel, 106 N. C. 766 ; 19 Am. St. 
 Rep. 573 ; C. v. Power, 7 Met. 596 ; 41 
 Am. D. 465. 
 
 ^ See S. v. Wright, 6 Jones (Law), 25 
 S. v. Powers, 36 Conn. 77 ; Brockway v. 
 P., 2 Hill, 558.
 
 chap. xxxn. § I.] Of Nuisances. 741 
 
 gers the public peace by drawing together dissolute and debauched 
 persons ; and also has an apparent tendency to corrupt the manners 
 of both sexes, by such an open profession of lewdness, (q) And it 
 has been adjudged that this is an offence of which a feme covert may 
 be guilty as well as if she were sole, and that she, together with her 
 husband, may be convicted of it ; for the keeping the house does not 
 necessarily import property, but may signify that share of government 
 which the wife has in a family as well as the husband ; and in this 
 she is presumed to have a considerable part, as those matters are 
 usually managed by the intrigues of her sex. (r) If a person be only 
 a lodger, and have but a single room, yet if she make use of it to accom- 
 modate people in the way of a bawdy-house, it will be a keeping of a 
 bawdy-house as much as if she had a whole house, (s) But an in- 
 dictment cannot be maintained against a person for being a common 
 bawd, and procuring men and women to meet together to commit 
 fornication : the indictment should be for keeping a bawdy-house, (t) 
 For the bare solicitation of chastity is not indictable, but cognizable 
 only in the Ecclesiastical Courts, (u) 
 
 All common gaming-houses 1 are nuisances in the eye of the law, 
 being detrimental to the public, as they promote cheating and other 
 corrupt practices ; and incite to idleness and avaricious ways of gain- 
 ing property, great numbers whose time might otherwise be employed 
 for the good of the community, (v) And the keeping a common gam- 
 ing-house, and for lucre and gain 2 unlawfully causing and procuring 
 divers idle and evil-disposed persons to frequent and come to play 
 together at a game called 'rouge et noir' and permitting the said idle 
 and evil-disposed persons to remain playing at the same game for 
 divers large and excessive sums of money, is an indictable offence at 
 common law. (w) It has also been adjudged, that it is an offence for 
 which a feme covert may be indicted : for, as she may be concerned 
 in acts of bawdry, as has been observed above, so she may be active 
 in promoting gaming, and furnishing the guests with conveniences 
 for that purpose, (x) As an indictment for keeping a gaming-house 
 is an indictment for a public nuisance, and not for any matter in the 
 
 is brought, may, if it think fit, in addition (v) Bac. Abr. tit. Nuisances (A.). 1 
 
 to, or in lieu of any penalty, require him to Hawk. P. C. c. 76, s. 6. R. v. Dixon, 10 
 
 enter into recognizances, with or without Mod. 336. See 2 & 3 Vict. c. 47, s. 48. 
 sureties, as in this act described.' (w) R. v. Rogier, 1 B. & C. 272. 2 D. 
 
 (q) 3 Inst. c. 98, p. 204. 1 Hawk. & R. 431. And Holroyd, J., said, that in 
 
 P. C. c. 74, and c. 75, s. 6. Bac. Abr. tit. his opinion it would have been sufficient 
 
 Nuisances (A.). Burn's Just. tit. Lewdness merely to have alleged, that the defendants 
 
 and Nuisance. kept a common gaming-house. And see R. 
 
 (r) R. v. Williams, 1 Salk. 383, ante, v. Taylor, 3 B. & C. 502. 
 152. (x) R. v. Dixon, Trin. 2 Geo. 1. Bac. 
 
 (s) R. v. Pierson, 2 Lord Raym. 1197; Abr. tit. Nuisances (A.). 10 Mod. 335. 1 
 
 1 Salk. 382. Hawk. P. C. c. 92, s. 30, and see ante, 
 
 (t) Id. ibid. p. 152. 
 
 (u) 1 Hawk. P. C. c. 74. Burn's Just, 
 tit. Lewdness. 
 
 American Notes. 
 
 1 As to bowling alleys in America, see 1 ; P. v. Jackson, 3 Denio, 101. Bishop i. 
 C. v. Goding, 3 Mete. 130 ; Bloomhuff v. S., s. 1136. 
 
 8 Blackf. 205 ; S. v. Hale, 3 Vroom, 158. 2 In America it would seem that lucre 
 
 As to gaming houses see S. v. Door, Gharl. need not be the motive of the keeping. 
 
 See Bishop i. ss. 1086, 1112, 1137.
 
 742 Playhouses. [book ii. 
 
 nature of a private injury, if the prosecutor forbears bringing the case 
 to trial, another person may proceed with the indictment. (_//) There 
 are certain penalties imposed by statutes upon the offence of keeping 
 a common gaming-house ; (z) and by 3 Geo. 4, c. 114, hard labour 
 may be added to any imprisonment which the Court may award, (a) 
 
 An indictment against a defendant for that he did keep a common, 
 ill-governed, and disorderly house, and in the said house for his lucre, 
 &c, certain persons of ill-name, &c, to frecpuent and come together, 
 did cause and procure, and the said persons in the said house to remain 
 fighting of cocks, booting, playing at cudgels, and misbehaving themselves, 
 did permit, has been held to be good, (b) And it seems that the keep- 
 ing of a cockpit is not only an indictable offence at common law, but 
 that a cockpit is considered as a gaming-house within the 33 Hen. 8, 
 c. 9, s. 11 (c) which imposes a penalty of forty shillings per day upon 
 such houses ; and therefore, on a conviction on an indictment at com- 
 mon law, the Court will measure the fine by inflicting forty shillings 
 for each day, according to the number of days such cockpit was kept 
 open, (d) 
 
 It seems to be the better opinion that playhouses, having been 
 originally instituted with a laudable design of recommending virtue 
 to the imitation of the people, and exposing vice and folly, are not 
 nuisances in their own nature, but may only become such by accident ; 
 as where they draw together such numbers of coaches or people, &c, 
 as prove generally inconvenient to the places adjacent ; or, when they 
 pervert their original institution by recommending vicious and loose 
 characters, under beautiful colours, to the imitation of the people, and 
 make a jest of things commendable, serious, and useful, (e) 
 
 (y) R. v. Wood, 3 B. & Ad. 657. See to the Metropolitan police districts. By 
 
 R. v. Oldfield, ibid, note (a). R. v. sec. 3 of 25 Geo. 2, c. 36, the Act is not to 
 
 Fielden, ibid. ; K. v. Constable, ibid. extend to the theatres in Drury Lane and 
 
 (z) 1 Hawk. P. C. c. 92, s. 14, et seq. Covent Garden, or the King's theatre in the 
 
 And see 25 Geo. 2, c. 36, s. 5 ; 42 Geo. 3, Haymarket ; nor to performances and pub- 
 
 c. 119. And see post, p. 754, as to Lotteries lie entertainments carried on under letters 
 
 and Little-goes. patent, or licence of the Crown, or licence 
 
 (a) See the section, ante, p. 81. of the Lord Chamberlain. Theatres are 
 
 (b) R. v. Higginson, 2 Burr. 1233. now put under salutary regulations by the 
 
 (c) This statute is partly repealed by 6 & 7 Vict. c. 68. And places of public 
 the 8 & 9 Vict. c. 109, but it is not easy to entertainment in the neighbourhood of Lon- 
 say how much. See 26 & 27 Vict. c. 125. don, if not properly licensed, are to be 
 
 (d) R. v. Howell, 3 Keb. 510. 1 Hawk, deemed disorderly houses by the 25 Geo. 2, 
 P. C. c. 92, s. 29. See 2 & 3 Vict. c. 47, c. 36, made perpetual by the 28 Geo. 2, 
 s. 47. c. 19, which, reciting the multitude of 
 
 (e) Bac. Abr. tit. Nuisances (A.). 1 places of entertainment for the lower sort 
 Hawk. P. C. c. 75, s. 7. And as to the of people as a great cause of thefts and 
 performance of an obscene play, see ante, robberies, enacts, ' that any house, room, 
 p. 618. garden, or other place, kept for public dan- 
 See also the 2 & 3 Vict. c. 47, s. 46, cing, music, or other public entertainment of 
 
 which gives power to enter unlicensed the like kind in the cities of London and 
 theatres, and subjects persons letting houses, Westminster, or within twenty miles there- 
 fee., for the purpose of being used as un- of,' without a licence from the last preceding 
 licensed theatres to a penalty of not more Michaelmas quarter sessions, under the 
 than £20, or two months' imprisonment ; hands and seals of four of the justices, 
 and subjects persons performing or being ' shall be deemed a disorderly house or 
 therein without lawful excuse, to a penalty place.' The Act then particularizes the 
 of 40s. : and a conviction under the Act is mode of granting the licence, makes it law- 
 not to exempt the owner, keeper, or man- ful for a constable or other person, author- 
 ager of any such house from any penalty for ized by warrant of a justice, to enter such 
 keeping a disorderly house, or for the nui- house or place, and to seize every person 
 sance thereby occasioned. The Act extends found therein ; and makes every person
 
 CHAP. XXXII. 
 
 '•] 
 
 Of Nuisances. 
 
 743 
 
 Tt seems also to be the better opinion, that all common stages for 
 rope-clanccrs, &c., are nuisances, not only because they are great temp- 
 tations to idleness, but also because they are apt to draw together 
 numbers of disorderly persons, which cannot but be very inconvenient 
 to the neighbourhood. (/) 
 
 By the 42 & 43 Vict., ch. 18, s. 6, 'Any person who shall be the 
 owner or lessee in possession of any open or enclosed land or place 
 for which a licence for horse-racing is required under this Act" [i. e. 
 within a radius of ten miles from Charing Cross], and upon which, 
 any horse race shall be held after Mar. 25, 1880, without such licence 
 having been obtained, shall be guilty of a misdemeanor, and on con- 
 viction thereof shall be punishable for every such offence with fine or 
 imprisonment at the discretion of the court, such fine not to be less 
 than £5 or more than £25, and such imprisonment not to be less than 
 one month or more than three months.' 
 
 The proceedings in respect of prosecutions against persons keeping 
 bawdy-houses, 1 gaming-houses, or other disorderly houses, are facilitated 
 
 keeping such house, &c, without a licence 
 
 liable to a penalty of £100, and otherwise 
 punishable as the law directs in cases of 
 disorderly houses. In the first place, the 
 house or room must be kept with the defend- 
 ant's knowledge ; secondly, it must be kept 
 for the purposes prohibited by the statute ; 
 there must be something like an habitual 
 keeping of it, which however need not be 
 at stated intervals ; thirdly, it must be pub- 
 lic, to which all persons have a right to go, 
 whether gratuitously or on payment of 
 money, no matter whether paid to the de- 
 fendant or not, if he knows of the payment. 
 Per Parke, B., Marks v. Benjamin, 5 M. & 
 W. 564. Where, therefore, the defendant 
 was a publican, and music, dancing, and 
 masquerades had occasionally been held at 
 his house, where, from its vicinity to the 
 Great Synagogue, Jewish marriages were 
 frequently celebrated, but no money was 
 taken at the door or elsewhere by the 
 defendant for admission, and the rooms 
 were let to a dancing- master, and to other 
 persons, who sold tickets and received 
 money for admission at the door ; but there 
 was no direct evidence that the defendant 
 knew of this practice ; it was held, that 
 there was evidence for the jury of keeping 
 the house for the purposes mentioned in the 
 Act. Marks v. Benjamin, supra. A mere 
 temporary or occasional use of a room for 
 music and dancing is not a keeping it within 
 this Act, but the room need not be kept exclu- 
 sively for those purposes, nor need money be 
 taken at the door. Where, therefore, the de- 
 fendant kept a public house, and on repeated 
 occasions, during a space of three or four 
 months, the tap-room was frequented at 
 night by numbers of sailors, soldiers, boys, 
 and prostitutes, who danced there to a 
 
 violin played by a person on an elevated 
 platform, but no money was taken for ad- 
 mission, it was held that the case was within 
 the Act. Gregory v. Tuffs, 6 C. & P. 271 ; 
 4 Tyrw. 820 ; Gregory v. Tavernor, 6 C. & 
 P. 280. On an indictment for unlawfully 
 keeping a room for public music and dan- 
 cing within twenty miles of London and 
 Westminster without a licence, it was 
 proved that nightly entertainments were 
 there given when music and dancing took 
 place, the public being admitted on paying 
 money at the door. There were often from 
 200 to 300 visitors, who conducted them- 
 selves in an orderly manner, and no impro- 
 priety of conduct was permitted or practised : 
 the Recorder held, that this room required a 
 licence under the Act, and that, after this 
 proof, it lay on the defendant to prove that 
 it was licensed. R. v. Wolf, 3 Cox, C. C. 
 578. The defendant kept a skating rink in 
 which in the evening dance music was 
 played during the skating. It was held 
 that he might be convicted under the Act 
 of keeping a place for public entertainment 
 of a like kind to music and dancing with- 
 out a licence. R. v. Tucker, 2 Q. B. D. 
 417. And so where the owner of a build- 
 ing allowed it gratuitously to be used for 
 the performance of stage plays, to which 
 the public were admitted on payment, for 
 the benefit of a charity, he was held to be 
 rightly convicted of keeping a house for the 
 public performance of stage plays without 
 a licence. Shelley v. Bethell, 12 Q. B. D. 
 11. 
 
 (/) Bac. Abr. tit. Nuisances (A.). 1 
 Hawk. P. C. c. 75, s. 6. And see ante, 
 p. 555 n.), as to stage players being indicted 
 for a riot and unlawful assembly. 
 
 American Note. 
 1 Although a bawdy-house may be the maybe convicted of keeping the house. See 
 wife's separate property, yet if the husband Bishop, vol. i. s. 1084. 
 lives with her, knowing what takes place, he
 
 744 Disorderly Houses. [book il 
 
 by the 25 Geo. 2, c. 36, by which it is enacted, that if two inhabitants 
 of any parish or place, paying scot and lot, give notice in writing to 
 the constable, of any person keeping a bawdy-house, gaming-house, or 
 any other disorderly house, in such parish or place, the constable shall 
 go with such inhabitants to a justice, and shall, upon such inhabitants 
 making oath before the justice that they believe the contents of the 
 notice to be true, and entering into a recognizance in twenty pounds 
 each to give material evidence against the person for such offence, 
 enter into a recognizance in the sum of thirty pounds to prosecute with 
 effect at the next sessions or assizes as to the justice shall seem meet. 
 And provision is also made for the payment by the overseers of the 
 charges of prosecution to the constable, and ten pounds on conviction 
 to each of the two inhabitants, (g) The person keeping such bawdy- 
 house, &c, is also to be bound over to appear at the sessions or 
 assizes, (h) 
 
 Sec. 8, reciting that by reason of the many subtile and crafty con- 
 trivances of persons keeping bawdy-houses, &c, it is difficult to prove 
 who is the real owner or keeper, enacts, ' that any person who shall 
 appear, act, or behave as master or mistress, or as the person having 
 the care, government, or management, of any bawdy-house, gaming- 
 house, or other disorderly house, shall be deemed and taken to be the 
 keeper thereof, and shall be liable to be prosecuted and punished as 
 such, notwithstanding he or she shall not, in fact, be the real owner 
 or keeper thereof.' By sec. 9, any person may give evidence ' upon 
 such prosecution, though an inhabitant of the parish or place, and 
 though he may have entered into the before-mentioned recognizance. 
 By sec. 10, no indictment shall be removed by certiorari, but shall be 
 tried at the same sessions or assizes where it shall have been preferred 
 (unless the Court shall think proper, upon cause shown, to adjourn 
 the same), notwithstanding any such writ or allowance. This clause 
 does not restrain the Crown from removing the indictment by certio- 
 rari ; there being nothing in the Act to show that the legislature 
 intended that the Crown should be bound by it. (j) And where an 
 indictment for keeping a disorderly house has been removed from the 
 sessions into the Central Criminal Court under the 4 & 5 Will. 4, c. 
 36, s. 16, either by the prosecutor or defendant, the opposite party may 
 remove it into the Court of Queen's Bench, (j) But the power of that 
 Court to grant a certiorari at the defendant's instance to remove 
 an indictment for keeping such a house found at the Middlesex 
 Sessions, is taken away by the 25 Geo. 2, c. 36, s. 10, whether the 
 prosecution be under that Act or in the ordinary course, (/r) 
 
 It is said that any number of persons may be included in the same 
 indictment for keeping different disorderly houses, (I) stating that they 
 ' severally ' kept, &c, such houses ; ( m) but it is usual in practice to 
 
 (g) Sec. 4. See Burgess v. Boetefeur, (h) R. v. Sanders, 9 Q. B. 235. 
 
 7 M. & G. 481, an action on this section. {I) As to an indictment for keeping a 
 
 (h) See the 58 Geo. 3, c. 70, s. 7, by disorderly house, or gambling-house, not 
 
 which a copy of the notice served on the being preferred without previous authoriza- 
 
 constable is also to be served on one of the tion, see ante, p. 2. 
 
 overseers, and the overseers may enter into (wi) 2 Hale, 174, where it is said, ' It is 
 
 a recognizance, and prosecute instead of the common experience at this day that twenty 
 
 constable. persons may be indicted for keeping dis- 
 
 (i) R. v. Davies, 5 T. & E. 626. orderly houses or bawdy-houses ; and they 
 
 [j) R. v. Brier, 14 Q. B. 568. are daily convicted upon such indictments,
 
 chap. xxxn. § i.] Of Nuisances. 745 
 
 indict the keeper of each house separately. It seems that in the 
 indictment it is necessary to make a particular statement of the 
 offence, which is the keeping of the house, (n) But particular facts 
 need not be stated ; and though the charge is thus general, yet at the 
 trial evidence may be given of particular facts, and of the particular 
 time of doing them, (o) It is not necessary to prove who freest: nts 
 the house, for that may be impossible : but if any unknown persons 
 are proved to be there behaving disorderly, it is sufficient to support 
 the indictment. Qj) 
 
 A conviction on an indictment for keeping a disorderly house will 
 be supported, although there is no evidence of any indecency or dis- 
 orderly conduct being perceptible from the exterior of the house, (q) 
 
 The 8 & 9 Vict. c. 109, s. 2, declares and enacts that, ' in default of 
 other evidence proving any house or place to be a common gaming- 
 house, it shall be sufficient, in support of the allegation in any 
 indictment or information that any house or place is a common 
 gaming-house, to prove that such house or place is kept or used for 
 playing therein at any unlawful game, and that a bank is kept there 
 by one or more of the players exclusively of the others, or that the 
 chances of any game played therein are not alike favourable to all 
 the players, including among the players the banker or other person 
 by whom the game is managed, or against whom the other players 
 stake, play, or bet ; and every such house or place shall be deemed a 
 common gaming-house such as is contrary to law, and forbidden to be 
 kept by the said Act of King Henry the Eighth, and by all other 
 Acts containing any provision against unlawful games or gaming- 
 houses.' (r) 
 
 By the 16 & 17Vict.c. 119, s.l, 'No house, office, room, or other place (s) 
 
 for the word separaliter makes them several People were admitted to this ground after 
 
 indictments.' And in R. v. Kingston and paying money and receiving tickets. Among 
 
 others, 8 East, 41, it was held that it is no those present inside the grounds were two 
 
 objection on demurrer that several different betting-book makers, with books in their 
 
 defendants are charged in different counts hand. These two men were shouting out, 
 
 of an indictment for offences of the same ' Twenty to two on the match.' The match 
 
 nature ; though it may be a ground for about to take place was a pigeon-shooting 
 
 application to the discretion of the Court to match for £10 a side. Two men came up 
 
 quash the indictment. to one of the book-makers, and one of them 
 
 (?i) By Buller, J., in J'Anson v. Stuart, gave to one of the men with the book a 
 
 1 T. R. 754. sovereign. As this man was getting some 
 
 (o) By Lord Hardwicke, in Clarke v. change back the other man said, ' Hold on, 
 
 Periam, 2 Atk. 339. that will do for both of us.' The book- 
 
 (p) J'Anson v. Stuart, 1 T. R. 754, by maker took a ticket out of his book, gave it 
 
 Buller, J. to one of the men, and said, ' That 's on 
 
 (q) R. v. Rice, 35 L. J. M. C. 93. Wooler' (one of the parties to the match). 
 
 (r) The Act also contains provisions for Soon after this Wooler was going to shoot 
 
 searching houses where gaming is suspected at a pigeon, when another man shouted out, 
 
 to be carried on, and for the summary con- ' Four to one he kills ! ' This bet was 
 
 viction of owners, keepers, and managers of taken, and the man said, 'Three to one he 
 
 gaming-houses, &c, &c. kills.' The appellant could hear what the 
 
 (s) As to the meaning of the words ' house, book-makers and other persons said. Held, 
 
 office, room, or other place ' in this enact- that there was evidence ; first, that the 
 
 ment, see Doggett v. Catterns, 17 C. B. ground in question was a ' place ' within the 
 
 N. S. 669 ; Shaw v. Morley, L. R. 3 Ex. meaning of the Act ; secondly, that al- 
 
 137; 37 L. J. M. C. 105; Bows v. Fen- though used for pigeon-shooting, it was 
 
 wick, 43 L. J. M. C. 107. Police constables also used for the purposes of betting, and 
 
 entered, at about half-past two in the after- that the magistrates were therefore justified 
 
 noon, an enclosed place called Borough in convicting the appellant under section 3 
 
 Park Ground, occupied by the appellant, of the Act. Eastwood v. Millar, L. R. 9 Q. B.
 
 746 
 
 Gaming Houses. 
 
 [book II. 
 
 shall be opened, kept, or used (t) for the purpose of the owner, 
 occupier, or keeper thereof, or any person using the same, or any 
 person procured or employed by or acting for or on behalf of such 
 owner, occupier, or keeper, or person using the same, or of any person 
 having the care or management or in any manner conducting the 
 business thereof, betting with persons resorting thereto (tt) ; or for the 
 purpose of any money or valuable thing being received by or on 
 behalf of such owner, occupier, keeper, or person as aforesaid as or for 
 the consideration for any assurance, undertaking, promise, or agree- 
 ment, express or implied, to pay or give thereafter any money or 
 valuable thing on any event or contingency of or relating to any 
 horse race, (u) or other race, fight, game, sport, or exercise, or as or for 
 the consideration for securing the paying or giving by some other per- 
 son of any money or valuable thing on any such event or contingency 
 as aforesaid ; and every house, office, room, or other place, opened, 
 kept, or used for the purposes aforesaid, or any of them, is hereby 
 declared to be a common nuisance (v) and contrary to law.' 
 
 Sec. 2. 'Every house, room, office, or place opened, kept, or used, 
 for the purposes aforesaid, or any of them, shall be taken and deemed 
 to be a common gaming-house within the meaning of 8 & 9 Vict. 
 c. 109.' (w) 
 
 440 ; ct per Lush, J. ' First, was it a place 
 within the meaning of the Act ? I can see no 
 reason why it should not be a "place," al- 
 though it is not a structure of any kind, and 
 is exposed to the open air, and why it should 
 not come within the meaning of the Act 
 as much as an ordinary tenement. It is an 
 enclosed place occupied exclusively by the 
 appellant, and is, therefore, quite within 
 the meaning of the Act, and the mischief 
 which it was intended to cure. The extent 
 of the premises cannot at all affect the 
 question, the public being only admitted to 
 them by the permission of the occupier, 
 the appellant. The cases which have been 
 cited in no way limit the construction which 
 I have thought right to put on the Act. In 
 Doggett v. Catterns, where a person was 
 convicted for having kept a betting-table 
 under one of the trees in Hyde Park, it 
 could not be said that this was a place kept 
 or used for the purpose of betting. The 
 same may be said as to the case of Morley 
 v. Greenhalgh, where the persons proceeded 
 against resorted to a quarry for the purpose 
 of betting, and it was held, on the author- 
 ity of the previous case of Clarke v. Hague, 
 that the quarry was not a place used for the 
 purpose in question. The same remark 
 applies to Clarke v. Hague, where two per- 
 sons went to a bowling alley belonging to 
 the appellant for the purpose of cock-fight- 
 ing, and it was not shown that the owner 
 or occupier had anything to do with the 
 cock-fighting, or even knew of its existence. 
 Here, what was done was with the knowl- 
 edge and consent of the appellant, who was 
 the sole occupier of the ground.' A movable 
 box within the ring at a race meeting has 
 been held to be ' a place ' within s. 3 of the 
 
 Act, Gallaway v. Maries, 8 Q. B. D. 275 ; but 
 the reserved portion of an enclosed field is not 
 a place within either of the sections. Snow 
 v. Hill, 14 Q. B. D. 588. And where the 
 owner of a house allowed a person who 
 made bets near it but outside the house 
 to deposit in the house the stakes received 
 by him, it was held that he could not be con- 
 victed for suffering the house to be used under 
 s. 3, Davis v. Stephenson, 24 Q. B. D. 529 ; 
 but where a book-maker and his clerk were on 
 several days using the bar and taproom of a 
 public house for the purpose of betting, and 
 the keeper of the house was present and 
 permitted such uses, he was held rightly 
 convicted although the book-maker and 
 clerk did not occupy any specific place in 
 the bar or taproom. Hornsby v. Raggett, 
 1892, 1 Q. B. 20. R. v. Preedy, 17 Cox, 433. 
 
 (t) As to using, seeWhitehurst». Fisher, 
 17 Cox, C. C. 70. 
 
 (tt) This means personally resorting and 
 not merely sending telegrams or letters. 
 R. v. Brown, 39 Sol. J. 64. 
 
 (u) See R. v. Crawshaw, Bell, C. C. 303, 
 30 L. J. M. C. 58. 
 
 (v) And is indictable as such, see R. v. 
 Crawshaw, supra. As to sentence of hard 
 labour, see 3 Geo. 4, c. 114, ante, p. 81. 
 
 [w) Sec. 3. makes the owner, occupier, 
 &c, of a house, &c, used for the purposes 
 mentioned in the previous sections liable to 
 be summarily convicted. See R. v. Cook, 13 
 Q. B. D. 377.* Sec. 4 makes the owner, occu- 
 pier, &c, of any such house, &c, who receives 
 any money as a deposit on any bet on condi- 
 tion of paying any money on the happening 
 of any event liable to be summarily con- 
 victed. Sec. 7 imposes a penalty on persons 
 exhibiting placards or advertising betting
 
 chap. xxxn. § i.] Of Nuisances. 747 
 
 The 17 & 18 Vict. c. 38, contains additional provisions for the 
 suppression of gaming-houses, and sec. 1 imposes penalties on persons 
 obstructing the entry of constables into suspected houses. 
 
 Sec. 2. ' Where any constable or officer authorized as aforesaid to 
 enter any house, room, or place is wilfully prevented from or 
 obstructed or delayed in entering the same or any part thereof, or 
 where any external or internal door of or means of access to any 
 such house, room, or place so authorized to be entered shall be found 
 to be fitted or provided with any bolt, bar, chain, or any means or 
 contrivance for the purpose of preventing, delaying, or obstructing the 
 entry into the same or any part thereof of any constable or officer 
 authorized as aforesaid, or for giving an alarm in case of such entry, 
 or if any such house, room, or place is found fitted or provided with 
 any means or contrivance for unlawful gaming, or with any means or 
 contrivance for concealing, removing, or destroying any instruments of 
 gaming, it shall be evidence, until the contrary be made to appear, that 
 such house, room, or place, is used as a common gaming-house within 
 the meaning of this Act and of the former Acts relating to gaming, and 
 that the persons found therein were unlawfully playing therein.' (x) 
 
 The proprietor and four members of the committee of a club were 
 held to be rightly convicted under s. 4, for keeping and using the club 
 for the purpose of unlawful gaming, but four members of the club who 
 were playing at baccarat, though possibly liable to be indicted for 
 unlawful gaming in a common gaming-house, (y) were not liable to 
 conviction under this statute since they did not assist in conducting 
 the establishment. If the club were kept for a double purpose, 
 namely, as a social club as well as a gaming-house, it nevertheless 
 would be a house kept for the purpose of gaming, (z) and it makes no 
 difference that the use of the club is limited to the members, for it is 
 not a public but a common gaming-house that is prohibited, (a) 
 
 A recorder of a borough has jurisdiction to try an indictment under 
 the 25 Geo. 2, c. 36, s. 5, for keeping a disorderly house w r ithin the 
 borough, (b) 
 
 The punishment for keeping a common bawdy-house, a common 
 gambling-house, or a common ill-governed and disorderly house, 
 is fine, or imprisonment, or both, and by the 3 Geo. 4, c. 114, hard 
 labour in addition to such imprisonment, (c) 
 
 In general, all open lewdness * grossly scandalous is punishable 
 
 houses. The Acts do not apply to advertise- tices to examine on oath any persons who 
 
 ments offering information for the purpose of have been apprehended. And Sec. 6 exon- 
 
 hets not to be made in any honse, &c. Cox erates persons so examined, who make a full 
 
 v. Andrews, 12 Q. B. D. 126. Sec. 11 em- discovery, from all penalties. 
 
 powers justices to authorize houses to be (y) See post, Gaming. 
 
 searched ; and Sec. 12 empowers commission- (z) See however R. v. Cook, 13 Q. B. D. 
 
 ers of police to do the same. See 37 Vict. 377. 
 
 c. 15. As to persons playing or betting in a (a) Jenks v. Turpin, 13 Q. B. D. 505. 
 
 street, 36 & 37 A T ict. c. 38, post, p. 754. See post, Gaming. 
 
 (r) Sec. 3 imposes a penalty on any per- (b) R. v. Charles, 1 L. & C. 90, 31 L. J. 
 
 son apprehended for giving a false name or M. C. 60. 
 
 address. Sec. 4 imposes penalties on persons (c) See the section, ante, p. 81. 
 
 keeping gaming-houses. Sec. 5 enables jus- 
 American Note. 
 
 1 S. v. Avery, 7 Conn. Rep. 267 ; S. dictable at common law, S. v. Branson & 
 
 v. Rose, 32 Mo. 560. In South Carolina Bailey, 149 ; but generally in America it 
 
 openly living in adultery was held not in- would appear to be so, see Bishop i. s. 501.
 
 748 Of Nuisances. — Indecency. [book II. 
 
 by indictment at the common law: and it appears to be an es- 
 tablished principle that whatever openly outrages decency, and is 
 injurious to public morals, is a misdemeanor, (cl) Exposing the 
 naked dead body of a newly-born infant has been held to be in- 
 dictable, (e) 
 
 The prisoners were convicted on an indictment which charged in 
 the first count the keeping and exhibiting of an indecent exhibition in 
 a certain booth for lucre or gain, the second count charged the exhibit- 
 ing of the same, the third count charged the exhibition as being in a 
 public place, and the fourth count charged the prisoners with uttering 
 indecent language in the presence and hearing of divers persons. 
 Objection was taken that the first and second counts were bad since 
 they did not allege any indecency in a public place, and that the third 
 count was not proved because the public had no right to enter the 
 booth except on payment. To the fourth count it was objected that 
 the mere utterance of indecent language was not an indictable 
 offence. 
 
 The judgment of the Court (Lord Coleridge, C. J., Bramwell and 
 Pollock, BB., Mellor and Grove, JJ.), was delivered by Lord Coler- 
 idge, C. J. ' It appears to have been proved that the two prisoners kept 
 on Epsom Downs a booth for the purpose of showing an indecent 
 exhibition, that they invited all persons who came within reach of 
 their solicitations to come in and see it, and that those who paid went in 
 and did see what was grossly indecent ; we think that those facts are 
 abundant to prove a common-law offence, and that it is well stated in 
 the indictment.' (/) 
 
 Any unlawful exposure of the private parts of an individual in a 
 public place and in the sight of divers persons is indictable. 
 
 A urinal situate in Hyde Park, was open to the public ; it was near 
 to a lodge, the window of which in a first floor commanded a view of 
 it ; the distance between the lodge and the urinal was 14 ft. 6 in. ; 
 the urinal was approached by a gate opening from the public foot- 
 path, and there was also access to it by another gate communicating 
 with a small garden belonging to the lodge; it was held that the 
 urinal was a public place, (g) Where a man indecently exposed his 
 person upon the roof of a house, where his act could not be seen by 
 persons passing along the highway, but where it was seen by seven 
 persons from the back windows of another house, it was held that he 
 was rightly convicted of exposing his person in a public place, (h) 
 A passenger in a public omnibus for hire exposed his person whilst 
 the omnibus was passing along a street, in the presence of three 
 or four females who were passengers in the omnibus, and saw 
 such exposure ; it was held that this was an exposure in a public 
 place, (i) 
 
 (d) 1 Hawk. P. C. c. 5, s. 4. Burn's Just. C. C. 116. The point as to indecent lan- 
 tit. Leivdncss. 4 Black. Com. 65 (n). lEast, guage does not seem to have been noticed by 
 P. C. c. 1, s. 1. See 5 Geo. 4, c. 85, s. 4, the Court. 
 
 and 1 & 2 Vict. c. 38, which make persons (g) R. v. Harris, 1 L. R. C. C. 282 ; 40 
 
 guilty of the indecent exposure of obscene L. J. M. C. 67. 
 
 prints, pictures, wounds, deformities, &c, (h) Pi. v. Thallman, L. & C. 336, 33 L. J. 
 
 punishable as rogues and vagabonds. M. C. 58. 
 
 (c) R. v. Clark, 15 Cox, C. C. 171. (i) R. v. Holmes, Dears. C. C. 207. _ On 
 
 (/) R. v. Saunders, 1 Q. B. D. 15, 13 Cox, an indictment for indecent exposure in a
 
 chap. xxxu. § I.] Of Nuisances. 749 
 
 A French master was tried on an indictment for indecently expos- 
 ing his person, and it appeared that he was seen from an opposite 
 window by a maid-servant, but there was no evidence that any one in 
 the street saw him, but only that persons going along the street might 
 have seen him ; Parke, B., directed the jury to consider whether the 
 prisoner was in such a situation that the passers-by in the street could 
 have seen him had they happened to look, and if they wure of that 
 opinion to find him guilty. (J) 
 
 Where an indictment for indecent exposure alleged the offence to 
 have been committed on a certain public and common highway, it was 
 held, on a case reserved in Ireland, that evidence that it was com- 
 mitted on a piece of land near the highway did not support the in- 
 dictment. And a count having been amended so as to state the 
 offence to have been committed ' on a place in view of a public high- 
 way,' and there being no evidence that any one could have seen the 
 prisoner except one female, it was held that no offence was proved ; 
 for an exposure seen by one person only, and being capable of being 
 seen by one person only, is not an offence at common law ; but if the 
 prisoner had been seen by one person only, and there had been evi- 
 dence that others might have seen him, the case would have been 
 different. No opinion w r as expressed as to the propriety of the 
 amendment, (k) 
 
 Where the place in question was out of sight of the public foot- 
 path but was a place to which persons were in the habit of going 
 without any strict legal right so to do and without being in any way 
 hindered, but the prisoner exposed his person to several little girls, it 
 was held that he was rightly convicted, and a suggestion was thrown 
 out that the offence might be indictable if committed before divers 
 subjects of the realm even if the place be not public. (I) 
 
 An indictment charged that the prisoner in a certain public and 
 open place, called Paddington churchyard, in the sight and to the 
 view of Lydia C, did wilfully expose his private parts ; the Court of 
 Queen's Bench arrested the judgment, on the ground that the nuisance 
 must be public, (m) So where an indictment charged that the prisoner 
 in a certain public place within a certain alehouse indecently did expose 
 his private parts in the presence of Mary A., and of divers other the 
 liege subjects of the Queen, and the prisoner had conducted himself 
 in an offensive manner in the public passage from the entrance door 
 of the public-house to the bar, but not amounting to an indecent ex- 
 posure, and whilst so doing several persons passed to and fro, and 
 he then took out and exposed his private parts to Mary A., but there 
 was no one in sight but herself at that time ; it was held that, assum- 
 ing the indictment to be sufficient, the averment respecting ' divers 
 
 certain room in a dwelling-house, it appeared whether this was a place in which such 
 
 that the prisoners had gone into a parlour in practices occurring they were likely to be 
 
 a public-house, and committed the acts witnessed by others, and there was a convic- 
 
 alleged, and that a maid-servant had wit- tion. R. v. Bunyan, 1 Cox, C. C. 74. As to 
 
 nessed what was done through the window a railway carriage being a public place, see 
 
 of another room, and had gone for assistance, Langrish v. Archer, 10 Q. B. D. 44. 
 
 and in consequence of her representations a (j) R. v. Rouverard, cited in K. v. Webb, 
 
 policeman and another witness went, and infra. 
 
 they also saw sufficient to constitute the (k) R. v. Farrell, 9 Cox, C. C. 446. 
 
 crime. The servant was not called as a wit- (I) R. v. Wellard, 14 Q. B. D. 63. 
 
 ness; and the Recorder left it to the jury (m) R. v. Watson, 2 Cox, C. C. 376.
 
 750 Of Nuisances. — Indecency. [book ii. 
 
 others' was material, and was not proved, as the exposure was only 
 proved to have been made in the presence of one person, {n) 
 
 Where an exposure was charged on a certain public common in the 
 presence and sight of divers persons, the prisoners had committed 
 fornication in open day on the said common ; there was no evidence 
 that it was committed within the sight of any one except the witness ; 
 it could have been seen by persons on the common, but the case did 
 not state that there were any other persons on the common ; the 
 judges, after argument, differed in opinion, and no judgment was 
 delivered, (o) 
 
 Where an indictment alleged that the two defendants in a certain 
 open and public place called Kew Gardens, frecpaented by divers of 
 the liege subjects, unlawfully did meet together for the purpose and 
 with the intent of committing with each other openly, lewdly, and 
 indecently, in the said public place, divers nasty, wicked, filthy, lewd, 
 beastly, unnatural and sodomitical practices, and then unlawfully, 
 wickedly, openly, lewdly, and indecently did commit with each other, 
 in the sight and view of divers of the liege subjects, in the said public 
 place passing and being, divers such practices as aforesaid, the Court 
 of Queen's Bench arrested the judgment on the ground that the in- 
 dictment did not state so distinct and specific a charge as on legal 
 principles was sufficient, (p) So where a count alleged that A. in a 
 certain public place did lay his hands on the private parts of B., with 
 intent to stir up in his own mind and B.'s mind unnatural and sodo- 
 mitical desires and inclinations, and to incite B. to the committing 
 with A. divers unnatural and sodomitical acts, and that B. in the 
 said public place did permit A. so to lay his hands, and was then 
 aiding and assisting A. in the said acts, with the like intent ; the 
 count was held bad for not describing an incitement to commit a 
 felony in proper terms, (q) 
 
 Bathing so near a public footway frequented by females that public 
 exposure must occur, is a nuisance, and it is no defence that there 
 has been an usage to bathe at that place time out of mind, (r) 
 
 In one case it was held to be an indictable offence for a man to 
 undress himself on the beach and to bathe in the sea near inhabited 
 houses, from which he might be distinctly seen ; although the houses 
 
 (rc) R. v. Webb, 1 Den., C. C. 338, 18 (o) R. v. Elliot, 1 L. & C. 103. * 
 
 L. J. M. C. 39, 2 C. & K. 933. No notice (p) R. v. Rowed, 3 Q. B. 180. The in- 
 
 was taken of the question whether the place dictment was too general. It did not 
 
 was a public place. The indictment alleged properly charge any distinct act. 
 
 the exposure ' in the presence of M. A. and (q) R. v. Orchard, 3 Cox, C. C. 248, 
 
 of divers others,' &c, and the judges doubted Cresswell and Erie, JJ. 
 
 whether it was not bad for not adding ' in (r) R. v. Reed, 12 Cox, C. C. 1, per 
 
 their view,' and also whether ' divers others ' Cockburn, C. J. 
 was sufficient. 
 
 American Note. 
 
 1 In America it was held sufficient to from several decisions that the American 
 
 allege that the defendant ' exposed his person Courts give a wide interpretation of the 
 
 in public view in a public place,' the Court words ' public place.' See Bishop, Vol. i., 
 
 holding that it was unnecessary that the s. 1129, citing among other cases P. v. Bixby, 
 
 exposure should be actually seen by the 4 Hun, 636, where some women exposed 
 
 public. It was enough if the circumstances themselves to some men in a bawdy-house, 
 
 rendered it probable that such exposure doors and shutters being closed. It would 
 
 would be seen by the public. S. v. Roper, seem however that there must be an evil in- 
 
 1 Dev. & Bat. 208. S. v. Millard, 18 Vt. tention, otherwise no offence is committed. 
 
 o74, 26 Am. D. 170. And it would appear Miller v. P., 5 Barb. 203 ; Bishop i. s. 1133.
 
 chap, xxxii. § i.] Of Nuisances. 751 
 
 had been recently erected, and, until their erection, it had been usual 
 for men to bathe in great numbers at the place in question. M'Don- 
 ald, C. B., ruled, that whatever place becomes the habitation of 
 civilized men, there the laws of decency must be enforced, (s) 
 
 To show a being of unnatural and monstrous shape for money is a 
 misdemeanor, (t) 
 
 By the 20 & 21 Vict, c. 83, justices are empowered to issue a war- 
 rant to search for any obscene books, papers, writings, prints, pictures, 
 drawings, or other representations kept in any house, &c, for the pur- 
 pose of sale or distribution, exhibition for the purpose of gain, lending 
 upon hire, or being otherwise published for the purpose of gain, if any 
 such articles are of such a description that the publication of them 
 would be a misdemeanor ; and if any such articles are found, the 
 justices may order them, except such as may be necessary as evidence 
 in some further proceeding, to be destroyed. 
 
 By this Act it is enacted that upon complaint before two justices 
 of the peace, that any obscene books, papers, prints, &c, are kept in any 
 place within their jurisdiction ' for the purpose of sale or distri- 
 bution, exhibition for purposes of gain, lending upon hire, or being 
 otherwise published for purposes of gain,' and upon the justices being 
 satisfied that any of the articles so kept are of such a character that 
 the publication of them would be a misdemeanor and proper to be 
 prosecuted as such, they may cause such books, &c. to be seized and 
 destroyed, in the manner provided by the Act. A society of persons 
 called ' The Protestant Electoral Union ' (whose objects were stated 
 to be, amongst others, ' to protest against those teachings and prac- 
 tices of the Romanist and Puseyite systems which are un-English, 
 immoral, and blasphemous,' to ' maintain the Protestantism of the Bible 
 and the liberty of England,' and ' to promote the return to Parliament 
 of men who will assist them in these objects ; and particularly will 
 expose and defeat the deep-laid machinations of the Jesuits, and resist 
 grants of public money for Romish purposes') exposed for sale at their 
 office a pamphlet entitled, ' The Confessional Unmasked, showing the 
 depravity of the Romish priesthood, the iniquity of the confessional, and 
 the questions put to females in confession.' This pamphlet consisted 
 of extracts from the works of theologians on the doctrines and dis- 
 cipline of the Church of Rome, and particularly on the practice of 
 auricular confession. On the side of the page were printed passages 
 in the original Latin, correctly extracted from the works of these 
 writers, and opposite each extract was placed a free translation of it 
 into English. The pamphlet also contained a preface and notes, and 
 comments condemnatory of the tenets and principles of the authors 
 
 (s) R. v. Crunden, 2 Campb. 89. And of 2,000 marks, to be imprisoned a week, 
 
 the Court of King's Bench, when the defend- and to give security for his good behaviour 
 
 ant was brought up for judgment, expressed for three years. 
 
 a clear opinion that the offence imputed to (t) Harring v. Walrond, 2 C'ha. Ca. 110, 
 
 him was a misdemeanor, and that he had the case of a monstrous child that died, and 
 
 been properly convicted. In R. v. Sir Charles was embalmed to be kept for show, but was 
 
 Sedley, Sid. 168, 1 Keb. 620, S. C, the de- ordered by the Lord Chancellor to be buried 
 
 fendant, being indicted for showing himself — (cited in Burn's Just. tit. iViu'sanccs). 
 
 naked from a balcony in Covent Garden to a See per Pollock, C. B., contra, in R. v. Webb, 
 
 great multitude of people, confessed the in- 2 C. & K. 938. 
 dictment ; and was sentenced to pay a fine
 
 752 Of Nuisances. — Common Scold. [book ii. 
 
 of the works from which the extracts were made. About one half of 
 the pamphlet related to casuistical and controversial questions which 
 were not obscene, but the remainder of the pamphlet was obscene, 
 relating to impure and filthy acts, words, and ideas. A member of 
 the society kept and sold these pamphlets with the purpose of pro- 
 moting the objects of the society, and exposing what he deemed to be 
 the errors of the Church of Borne. Two magistrates, purporting to 
 act under the above-mentioned statute, ordered a number of these 
 pamphlets while in his possession to be seized and destroyed : Held 
 that, notwithstanding the object of the defendant was not to injure 
 public morals, but to attack the religion and practice of the Roman 
 Catholic Church, this did not justify his act nor prevent it from 
 being a misdemeanor proper to be prosecuted, as the inevitable effect 
 of the publication must be to injure public morality ; and although he 
 might have had another object in view, he must be taken to have in- 
 tended what was the natural consequence of his act, and had therefore 
 been guilty of an offence within the meaning of this statute, (u) 
 
 A herbalist, who had publicly exposed and exhibited in his shop 
 on a highway a picture of a man naked to his waist and covered 
 with eruptive sores, so as to constitute an offensive and disgusting 
 exhibition, was held guilty of a nuisance, although there was nothing 
 immoral or indecent in the picture, and his motive was innocent, (v) 
 
 A count which charges the keeping obscene prints with intent 
 to utter them is bad, as it alleges no act done; but a count which 
 charges the procuring obscene prints with the like intent is good, as 
 procuring is an act done, (w) 
 
 By the 14 & 15 Vict. c. 100, s. 29, whenever any person shall be 
 convicted of any public and indecent exposure of the person, or any 
 public selling or exposing for public sale or to public view of any ob- 
 scene book, print, picture, or other indecent exhibition, the Court may 
 sentence the offender to be imprisoned for any term now warranted 
 by law, and also to be kept to hard labour during the whole or any 
 part of such term of imprisonment. 
 
 Eaves-droppers} or such as listen under walls or windows, or the 
 eaves of a house, to hearken after discourse, and thereupon to frame 
 slanderous and mischievous tales, are a common nuisance, and present- 
 able at the Court Leet ; or are indictable at the sessions, and punish- 
 able by fine and finding sureties for their good behaviour, (x) 
 
 A common scold, communis rixatrix (for our law confines it to the 
 feminine gender), 2 is a public nuisance to her neighbourhood, and may 
 be indicted for the offence ; and, upon conviction, punished by being 
 placed in a certain engine of correction called the trebucket, or cuck- 
 
 (u) E. v. Hicklin, 37 L. J. M. C. 89. (x) 4 Black. Coin. 167, 168. Burn's Just. 
 
 (v) E. v. Grey, 4 F. & F. 73. tit. Eaves Bro/jpers. 
 
 (»■) R. v. Dugdale, Dears. C. C. E. 64 
 ante, p. 188. 
 
 American Notes. 
 
 1 In America it has been held that a 2 See James v. C, 12 Serg. & R. 220. A 
 
 person who hangs about the Grand Jury common drunkard is an indictable nuisance 
 
 Eoom in order to overhear the remarks of the in America (C. v. Conley, 1 Allen, 6), and 
 
 Grand Jury is indictable for eaves-dropping, so is a common brawler. C. v. Foley, 99 
 
 S. v. Pennington, 3 Head, 299; 75 Am. D. Mass. 497; Bishop i. s. 505. 
 771.
 
 chap. xxxn. § i.] Of Nuisances. 753 
 
 ing stool, (y) And she may be convicted without setting forth the 
 particulars in the indictment ; (z) though the offence must be set 
 forth in technical words, and with convenient certainty, (a) It is not 
 necessary to give in evidence the particular expressions used ; it is 
 sufficient to prove generally that the defendant is always scolding, (b) 
 
 A defendant was convicted on an indictment for making great 
 noises in the night with a speaking trumpet, to the disturbance of the 
 neighbourhood ; which the court held to be a nuisance, (c) 
 
 The exposing in public places persons infected with contagious dis- 
 orders, so that the infection may be communicated, is a nuisance, and 
 has been already treated of in a preceding chapter, (d) 
 
 It is said that a mastiff" going in the street unmuzzled, from the 
 ferocity of his nature being dangerous and. cause of terror to his 
 Majesty's subjects, seems to be a common nuisance; and that, con- 
 sequently, the owner may be indicted for suffering him to go at 
 large, (e) 
 
 There are also some offences which are declared to be nuisances by 
 the enactments of particular statutes. Where a statute declares a 
 particular thing to be a common nuisance, it is indictable as such. 
 An Act of Parliament prohibited the erection of any building within 
 ten feet of a road, and declared that if any such building should be 
 erected, it should be deemed a common nuisance. By another clause, 
 justices were empowered to convict the proprietor and occupier of 
 such building ; it was held that the party who erected a building con- 
 trary to the Act might be indicted for a nuisance. (/) 
 
 A canal company were empowered by an Act of Parliament to take 
 the water of certam brooks and use it for the purposes of their canal ; 
 the water in one of the brooks at the time the Act passed was pure, 
 but it afterwards became polluted by drains, &c. before it reached the 
 canal, and it was then penned back in the canal, and became a public 
 nuisance : Held, that the company were liable to be indicted for the 
 nuisance, as there was nothing in the Act compelling them to take 
 the water, or authorizing them to use it so as to create a nuisance, (g) 
 
 (?/) 1 Hawk. P. C. c. 75, s. 14. 4 Black, see a precedent of an indictment for this 
 
 Coin. 168. Burn's Just. tit. Nuisances, III. offence, 3 Chit. Crira. Law, 643. It should 
 
 Cuck or guck, in the Saxon language (accord- be observed, however, that the offence seems 
 
 ing to Lord Coke) signifies to scold or brawl ; to be stated too generally in the authority 
 
 taken from the bird cuckow, or guckhaw: from which the text is taken. To permit a 
 
 and ing in that language signifies water, furious mastiff or bull-dog to go at large and 
 
 because a scolding woman, when placed in unmuzzled may be a nuisance ; but those 
 
 this stool, was for her punishment soused in dogs are frequently quiet, and gentle in their 
 
 the water. 3 Inst. 219. habits, except when incited by their owners ; 
 
 (z) 2 Hawk. P. C. c. 25, s. 59. and it can hardly be said to be a nuisance to 
 
 (a) K. v. Cooper, 2 Str. 1246. permit them to go at large and unmuzzled, 
 
 (b) By Buller, J., in J'Anson v. Stuart, because some of their breed are ferocious. 
 1 T. R. 754. See 34 & 35 Vict. c. 56, which gives a sum- 
 
 (c) R. v. Smith, 1 Str. 704. And see a mary jurisdiction in certain cases where dogs 
 precedent of an indictment for keeping dogs are dangerous, &C. 1 
 
 which made noises in the night, 2 Chit. (/) R. v. Gregory, 5 B. & Ad. 555. See 
 
 Crira. Law, 647. this case as to the meaning of the term 
 
 (d) Ante, p. 272. ' building' in such an Act. 
 
 (e) Burn's Just. tit. Nuisance, 1. And (g) R. v. Bradford Navigation, 34 L. J. 
 
 American Note. 
 
 1 In America it seems that a dog well Vol. i., s. 1080, note 2. A public beating 
 
 known to be a ferocious dog is a common of an animal or a slave is indictable as a 
 
 nuisance and may be killed. See Bishop, nuisance. Bishop, i. s. 597. 
 vol. I. — 48
 
 754 Of Nuisances — Lotteries. [book ii. 
 
 By the 10 & 11 Will. 3, c. 17, all lotteries are declared to be public 
 nuisances ; and all grants, patents, and licences for such lotteries to 
 be against law. But for many years it was found convenient to the 
 Government to raise money by the means of them ; and accordingly 
 different state Lottery Acts were passsed to license and regulate 
 offices for lotteries, (h) But the 42 Geo. 3, c. 119, declares all games 
 or lotteries, (i) called little-goes, to be public nuisances, and provides 
 for their suppression ; and also imposes heavy penalties upon persons 
 keeping offices, &c, for lotteries not authorised by Parliament, (j) 
 An indictment lies on Sec. 1 of each of these Acts for keeping a 
 lottery, (k) 
 
 A lottery in which tickets were drawn by subscribers of a shilling, 
 which entitled them at all events to what was professed to be a shil- 
 ling's worth of goods, and also to the chance of certain bonuses of goods 
 of greater value than the shilling, is an illegal lottery within the 
 statute. (/) 
 
 By the 36 & 37 Vic. c. 38, s. 3, every person playing or betting by way 
 of wagering or gaming in any street, road, highway or other open and 
 public place, or in any open place to which the public have or are 
 permitted to have access, (m) at or with any table or instrument of gam- 
 ing, (n) or any coin, card, token or other article used as an instrument or 
 means of such wagering or gaming, at any game or pretended game of 
 chance, shall be deemed a rogue and a vagabond within the true intent 
 and meaning of 5 Geo. 4, c. 83, and as such may be convicted and 
 punished under the provisions of that Act. By 42 & 43 Vic. c. 18, 
 s. 7, Every horse race held or taking place in contravention of the pro- 
 visions of this Act shall be deemed to be a nuisance, and any person 
 injured or inconvenienced thereby shall have all such rights and 
 remedies against all persons taking part in the same, and against 
 owners, lessees and occupiers of the land or place, as he would have in 
 case of a nuisance at common law. 
 
 And where a man sold packets of tea which were advertised to, 
 and actually did, each contain a coupon entitling the buyer to a prize, 
 but the prizes varied in character and value, it was held that this 
 constituted a lottery within 42 Geo. 3, c. 119. (o) The proprietor of a 
 newspaper published a paragraph in which the last word was omitted. 
 The readers of the paper were invited to fill in the missing word and 
 send it to the office of the paper with a shilling for each guess, and it 
 was promised that the whole of the money received should be divided 
 among the successful competitors. It was held that this competition 
 was an illegal lottery within the Act. (p) But where a newspaper 
 
 Q. B. 191. As to a body in whom the (7) R. v. Harris, 10 Cox, C. C. 352. 
 
 guardianship of the highway is vested having (in) A railway carriage on its journey is 
 
 the right of removing obstructions in the within the section. Langrish ivArcher, 10 
 
 highway, see Bagshaw v. The Boston Local Q. B. D. 44. It seems doubtful whether 
 
 Board of Health, 45 L. J. Chanc. 260. enclosed grounds for admission to which the 
 
 (/;) See the Acts collected, Burn's Just, public have to pay is within the section. 
 
 tit. Gaining, III. By the 9 & 10 Vict. c. 48, Hirst v. Molesbury, L. R. 6 Q. B. 130. 
 certain associations for the distribution of (n) Betting on a race with a half sove- 
 
 works of art are legalised. See aiso 21 & 22 reign is not within the section. Hirst v. 
 
 Vict. c. 102. Molesbury, L. R. 6 Q. B. 130, but an auto- 
 
 (i) Morris v. Blackman, 2 H. & C. 912. matic machine for registering the odds is. 
 
 0') See 6 & 7 Will. 4, c. 66, 8 & 9 Vict. Tollett v. Thomas, L. R. 6 Q. B. 514. 
 c. 74, 37 & 38 Vict. c. 35. (o) Taylor v. Smetten, 11 0. B. D. 207. 
 
 (k) R. v. Crawshaw, Bell, C. C. 303. (p) Barclay v. Pearson (1893), 2 Ch. 154.
 
 chap. xxxn. § i.] Of Nuisances. 755 
 
 proprietor published a weekly racing record at the end of which there 
 was a coupon to be cut off by the purchaser, and filled up with the 
 names of horses which the purchaser thought would win the races 
 therein named, and then sent to the newspaper office where prizes 
 were given to the persons who selected the greatest number of winners, 
 it was held that this was not a lottery nor did it amount to illegal 
 betting, (q) A society making certain of its members entitled to par- 
 ticular benefits by the process of periodical drawings, does not come 
 within the Lottery Acts, (r) 
 
 It is laid down in some books that any one may pull down, or 
 otherwise destroy, a common nuisance ; J and it is said that if any one, 
 whose estate is, or may be, prejudiced by a private nuisance, may 
 justify the entering into another's ground and pulling down and 
 destroying such nuisance, surely it cannot but follow a fortiori that 
 any one may lawfully destroy a common nuisance, (s) 
 
 It has since been held, that if there be a nuisance in a highway, a 
 private individual cannot of his own authority abate it, unless it does 
 him special injury, and he can only interfere with it as far as is neces- 
 sary to exercise his right of passing along the highway, and he cannot 
 justify doing any damage to the property of the person who has im- 
 properly placed the nuisance in the highway, if, avoiding it, he might 
 have passed on with reasonable convenience, (t) 
 
 It is also stated as the better opinion, that the Court of Queen's 
 Bench may, by a mandatory writ, prohibit a nuisance, and order that 
 it shall be abated ; and that the party disobeying such writ will be 
 subject to an attachment, (u) Such writs appear to have been 
 granted in some cases ; and the proceeding in one case was that the 
 judges, upon view, ordered a record to be made of the nuisance, and 
 sending for the offender, ordered him to enter into a recognizance not 
 to proceed ; but he refusing to comply, the Court committed him for 
 the contempt, issuing a writ to the sheriff on the record made, to 
 abate the building, and ordered the offender to be indicted for the 
 nuisance, (v) 
 
 But the more usual course of proceeding in cases of nuisance is by 
 indictment, in which the nuisance should be described according to the 
 circumstances; and it should be stated to be continuing, if that be 
 the fact, (to) An indictment for carrying on offensive works may 
 state them to be carried on at such a parish. It is not necessary to 
 state that they were carried on in a town or village ; ( x) stating them 
 
 (q) Caminada v. Hulton, 17 Cox, C. C. Ellis v. The London and S. W. R. Co., 2 H. 
 
 307. The case seems explicable on the ground & N. 424. Arnold v. Holbrook, 42 L. J. Q. 
 
 that no deposit was paid by the purchaser, B. 80. 
 
 aid also that skill was necessary to select the (u) Bac. Abr. tit. Nuisance (C. ). 
 
 right horses. (v) R. v. Hall, 1 Mod. 76. 1 Vent. 169, 
 
 (r) Wallingford v. Mutual Society, 5 S. C. And Hale, C. J., mentioned another 
 
 App. Cas. 685. case in 8 Tar. 1, of a writ to prohibit a 
 
 (s) 1 Hawk. P. C. c. 75, s. 12. Bac. bowling-alley erected near St. Dnnstan's 
 
 Abr. tit. Nuisance (C. ). See Roberts v. church. 
 Rose, 4 H. & C. 103. (w) R. v. Stead, 8 T. R. 142 ; otherwise 
 
 (/) Dimes v. Petley, 15 Q. B. 276. there will not be judgment to abate it. 
 Mayor of Colchester v. Brooke, 7 Q. B. 339. (a:) Burr. 333. 
 
 Bateman v. Bluck, 18 Q. B. 870. And see 
 
 American Note. 
 1 As to abating nuisances in America, see 1 Casey, 503 ; Hart v. Mayor of Albany, 9 
 S. v. Noyes, 10 Foster, 279 ; Barclay v. C, Wend. 571.
 
 756 Indictment. Defence. [book ii. 
 
 to be carried on near a common King's highway, and near the 
 dwelling-houses of several persons, to the common nuisance of passen- 
 gers and of the inhabitants, is sufficient : it need not be stated how 
 near the highway or houses they were carried on. (_//) The offence is 
 charged to be done ad commune nocumentum, 'to the common nui- 
 sance of all the liege subjects,' &c. (z) When the want of a proper 
 conclusion is cured see the 14 & 15 Vict. c. 100, s. 24. (a) 
 
 In some cases it is no defence to show that the premises, out of 
 which the nuisance arises, are in the occupation of a tenant. 
 
 If the owner of land erect a building which is a nuisance, or of 
 which the occupation is likely to produce a nuisance, and let the 
 land, he is liable to an indictment for such nuisance being continued 
 or created during the term, (b) Where the defendant was in receipt 
 of the rents of some dwelling-houses, let for short periods to tenants, 
 and two privies and a sink belonging to them were used in common 
 by the occupiers of the houses ; it did not appear whether any of the 
 present tenants commenced occupying the houses before the defend- 
 ant began to receive the rents ; but the privies and sink were used by 
 the tenants of those premises before his time ; there was no distinct 
 proof of any actual demise of the privies and sink, but they had regu- 
 larly been cleansed by the persons occupying the houses, until the 
 time of the nuisance, when the cleansing had been neglected ; the 
 nuisance had arisen since the defendant began to receive the rents ; it 
 was held that the defendant was liable to be indicted for the nui- 
 sance, (c) This case underwent great consideration in a later case 
 where the Court said, ' If E. v. Pedley is to be considered as a case 
 in which the defendant was held liable because he had demised the 
 buildings when the nuisance existed ; or because he had relet them 
 after the user of the buildings had created a nuisance ; or because he 
 had undertaken the cleansing and had not performed it ; we think the 
 judgment right. But if it is to be taken as a decision that a landlord 
 is responsible for the act of his tenant in creating a nuisance, by the 
 manner in which he uses the premises demised ; we think it goes 
 beyond the principle to be found in any previously decided case, and 
 cannot assent to it ; ' for ' if a landlord lets premises, not in themselves 
 a nuisance, but which may or may not be used by the tenant so as to 
 become a nuisance, and it is entirely at the option of the tenant so to 
 use them or not, and the landlord receives the same benefit whether 
 they are so used or not, the landlord cannot be made responsible for 
 the acts of the tenant ; and a fortiori he would not be liable if he 
 had taken an obligation from the tenant not to use them so as to 
 create a nuisance, even without reserving a right to enter and abate a 
 nuisance if created.' (d) 
 
 (y) Id. ibid. 449. The duty of cleansing and repairing 
 
 (z) Yin. Abr. tit. Indictment (Q.), Nui- drains and sewers is prima facie that of the 
 
 sancc, 13. Pratt v. Stearn, Cro. Jac. 382. occupier and does not devolve on the owner 
 
 1!. v. Hayward, Cro. Eliz. 148. Anon. 1 merely as such. 
 
 Ventr. 26. 2 Roll. Abr. 83. 1 Hawk. P. C. (c) R. v. Pedley, supra. See Gaudy v. 
 
 c. 75, ss. 3, 4, 5. And see Bac. Abr. tit. Jubber, 5 B. & S. 78. 
 Nuisance (B.). R. v. Reynell, 6 East, 315. (d) Per Curiam, Rich v. Basterfield, 4 C. 
 
 (") Pi. v. Holmes, Dears. C. C. 207, ante B. 783, where it was held that a landlord, 
 
 p. 37. who let a shop with a chimney in it to a 
 
 (h) P. p. Pedley, 1 A. & E. 822. 3 X. tenant who made fires, the smoke from which 
 
 & M. 627. See Piussell v. Shenton, 3 Q. B. issued from the chimney, and caused a
 
 CHAP. XXXII. 
 
 §'•] 
 
 Of Nuisances. 
 
 757 
 
 Upon an indictment for keeping two bawdy-houses, the evidence, 
 in addition to the proof of the nature of the houses, was that the 
 defendant owned the houses, which he let to weekly tenants, and that 
 he had been repeatedly remonstrated with as to the manner in which 
 the houses were conducted, and called upon to interfere so as to abate 
 the nuisance ; of these warnings he took no notice, and some months 
 before the prosecution, he was served with a notice to the like effect ; 
 he, however, took no steps to stop the nuisance, but continued to go 
 to the houses, and receive the rent every week ; but it was not proved 
 that the defendant obtained any additional rent by reason of the 
 nature of the occupation ; and it was held that the defendant was not 
 really the keeper of the bawdy-houses in point of law ; but was 
 simply the owner of the houses, letting them to other persons who 
 used them for an immoral purpose, (e) 
 
 The prisoner, being the owner of a house, let out the different 
 apartments in it separately to young women, who, to his knowledge 
 and with his consent, used them for the purposes of prostitution. 
 They were merely weekly tenants. The prisoner, when he let the 
 rooms, knew of the purposes to which they would apply them, and 
 fully assented thereto, but he received no share of the earnings of the 
 women. He did not live in the house, and he only went there to 
 collect his weekly rents. He had no other control over the tenants 
 
 nuisance, was not responsible for it. It lias 
 since been held that an action lies against a 
 person who lets premises with a ruinous 
 chimney upon them, which afterwards falls 
 and injures an adjoining building, on the 
 ground that if the wrong causing the injury 
 arises from the nonfeasance or misfeasance 
 of the lessor, the party suffering the injury 
 may sue him. Todd v. Flight, '7 C. B. (N. 
 S. ) 377. A. let to B. a field for the purpose 
 of its being worked as a lime quarry. The 
 ordinary way of getting the limestone was 
 by means of blasting, and A. authorised the 
 quarrying of the stone and the erection of 
 lime kilns in the field. A nuisance was 
 caused to the adjoining occupier by the blast- 
 ing and by the smoke from the kilns, and he 
 brought an action against both A. and B. 
 On demurrer by A. : — Held, that he, the 
 landlord, was liable although the nuisance 
 was actually created by the act of his tenant, 
 because the terms of the demise were an 
 authority from him to B. to create the nui- 
 sance, which was, therefore, the necessary 
 consequence of the mode of occupation con- 
 templated in the demise. Harris v. James, 
 45 L. J. Q. B. 545 ; et per Blackburn, J. : — 
 ' In the present case, as I understand the 
 averments, the field was let for the very 
 purpose and object of being worked as a lime 
 quarry, and for erecting lime kilns and 
 burning lime. When, then, it is stated as a 
 fact that the injury complained of arose from 
 the natural and necessary consequence of 
 carrying out this object, and as the result of 
 lime getting and lime burning, then I think 
 we must say that the landlord authorised the 
 lime burning and the nuisance arising from 
 it as being the necessary consequence of let- 
 
 ting the field in the manner and with the 
 objects described. In Rich v. Basterfield, 
 4 C. B. 483, the Court of Common Pleas 
 came to a conclusion of fact which author- 
 ised their conclusion upon the case. There, 
 a former occupier of the premises where the 
 chimney was used to burn coke in the fire, 
 and caused no smoke which could be at all 
 injurious to the plaintiff; and the judgment 
 proceeded on that ground, as is evident from 
 the following passage : — "It being therefore 
 quite possible for the tenant to occupy the 
 shop without making fires, and quite 
 optional on his part to make them or not, 
 or to make them with certain times excepted, 
 so as not to annoy the plaintiff, or in such a 
 manner as not to create any quantity of 
 smoke that could be deemed a nuisance, it 
 seems impossible to say that the tenant was 
 in any sense the servant or agent of the 
 defendant, in doing the acts complained of. 
 The utmost that can be imputed to the de- 
 fendant is, that he enabled the tenant to 
 make fires if he pleased." Assuming that 
 the evidence really did establish the facts 
 which the Common Pleas thought it did, 
 and if it was not the necessary consequence 
 of burning fires in the chimney that there 
 should be smoke, I have no fault to find 
 with the decision ; but then, this case is 
 not the same, because the fifth paragraph 
 finds that the injury arising from the smoke 
 and vapour is the natural and necessary 
 consequence of the use of the land, and the 
 plaintiff must therefore have judgment upon 
 the demurrer to that paragraph.' 
 
 (e) R. v. Barrett, 9 Cox, C. C.255, 32 L. 
 J. M. C. 36.
 
 758 Judgment. [book ii. 
 
 than arose from his power as landlord to determine the tenancies : — 
 Held, that he could not be indicted for keeping a disorderly house, if) 
 
 It is no defence for a master or employer that a nuisance is caused 
 by the acts of his servants, if such acts are done in the course of their 
 employment. ((/) But the general rule of law is that a master is not 
 criminally responsible for the negligence of his servant, and where the 
 occupier of premises was summoned under 16 & 17 Yict. c. 128, for 
 not consuming the smoke of his furnaces and it was proved that the 
 smoke was caused by the carelessness of the stoker whom he employed, 
 it was held that he could not be convicted. (Ji) 
 
 It will be no excuse for the defendant that the nuisance, for which 
 he is indicted, has been in existence for a great length of time, (i) 3 
 Lord Ellenborough, C. J., said, in one case, ' It is immaterial how long 
 the practice may have prevailed, for no length of time will legitimate a 
 nuisance. The stell fishery across the river at Carlisle had been estab- 
 lished for a vast number of years, but Buller, J., held that it continued 
 unlawful, and gave judgment that it should be abated.' (/) But in 
 some cases length of time may concur with other circumstances in 
 preventing an obstruction from having the character of a nuisance, (k) 
 
 If the indictment be so general that it does not convey sufficient 
 information to the defendant to enable him to prepare his defence, the 
 Court will order the prosecutor to give the defendant particulars of 
 the several acts of nuisances he intends to prove. (7) And where the 
 indictment is for the obstruction or non-repair of highways which are 
 described generally, particulars of the several highways obstructed or 
 out of repair may be obtained, (m) 
 
 All common nuisances are regularly punishable by fine and im- 
 prisonment : but, as the removal of the nuisance is usually the chief 
 end of the indictment, the Court will adapt the judgment to the 
 nature of the case. Where the nuisance, therefore, is stated in the 
 indictment to be continuing, and does in fact exist at the time of 
 the judgment, the defendant may be commanded by the judgment to 
 remove' it at his own costs :(n) but only so much of the thing as 
 
 (/) R. v. Stannard, 33 L. J. M. C. 61, offence at common law ;' and per Montague, 
 
 L. & C. 349. 1 C. J., ' Neither the King nor the lord of a 
 
 (g)R. v. Medley, 6 C. & P. 292, Lord manor can give any liberty to erect a common 
 
 Denman, 0. J. R. v. Stephens, 1 L. R. Q. nuisance.' See Simpson v. Wells, 41 L. J. 
 
 B. 702 ; 35 L. J. Q. B. 251. These cases M. C. 105. 
 
 seem either to turn on statutory enactments (j) R. v. Cross, 3 Camp. 227. 
 
 or the proceeding was a civil and not a (k) R. v. Smith and others, 4 Esp. 111. 
 
 criminal one. 2 See ante, p. 274. See Bliss v. Hall, 4 B. N. C. 183. R. v. 
 
 (h) Chisholm v. Doulton, 22 Q. B. D. Montague, 4 B. & C. 598, post. 
 
 736.1 (/) R. v. Curwood, 3 A. & E. 815. 
 
 it) Weld v. Hornby, 7 East, 199 ; and (»') R. v. Marquis of Downshire, 4 A. & 
 
 see sec. 3 of this chapter. Fowler v. Sanders, E. 698. R. v. Inhabitants of Pembridge, 
 
 fro. Jac. 446. In Dewell v. Sanders, Cro. June 26, 1841, Patteson, J., at chambers. 
 
 Jac. 490, the Court referred to this case as R. v. Probert, Dears. O C. 32 (a). R. v. 
 
 deciding that ' none can prescribe to make a Flower, 7 D. P. C. 665. 
 
 common nuisance, for it cannot have a lawful (n) 2 Roll. Abr. 84. 1 Hawk. P. C. c. 75, 
 
 beginning by licence or otherwise, being an s. 14. R. v. Pappineau, 1 Str. 686. 
 
 American Notes. 
 1 As to the two cases above cited of R. v. 2 The case of R. v. Stephens is cited_with 
 
 Barrett and R. v. Stannard it appears to be approval by Mr. Bishop, Vol. i., s. 1076. 
 Mr. Bishop's opinion that they would not be 3 P. v. Cunningham, 1 Demo, 624. 
 
 followed in America; see Bishop, Vol. i., Elkins v. S., 3 Humph. 543. 
 ss. 1094-1096.
 
 chap, xxxii. § i.] Of Nuisances. 759 
 
 causes the nuisance ought to be removed ; as if a house be built too 
 high, only so much of it as is too high should be pulled down ; and if 
 the indictment were for keeping a dye-house, or tarrying on any other 
 stinking trade, the judgment would not be to pull down the building 
 where the trade was carried on. (o) So in the case of a glass-house, 
 the judgment was to abate the nuisance, not by pulling the house 
 down, but only by preventing the defendant from using it again as a 
 glass-house, (p) But where the indictment does not state the nuisance 
 to be continuing, a judgment to abate it would not be proper. In a 
 case where this point arose, Lord Kenyon, C. J., said, ' When a de- 
 fendant is indicted for an existing nuisance, it is usual to state the 
 nuisance and its continuance down to the time of taking the inquisi- 
 tion ; it was so stated in B. v. Pappineau, et adhuc existit ; and in such 
 cases the judgment should be that the nuisance be abated. But in 
 this case it does not appear in the indictment that the nuisance was 
 then in existence ; and it would be absurd to give judgment to abate 
 a supposed nuisance which does not exist. If, however, the nuisance 
 still continue, the defendant may be again indicted for continuing 
 it.' (q) 
 
 The 18th section of the 12 & 13 Vict. c. 45, by which any order of 
 Quarter Sessions may be removed into the Court of Queen's Bench, 
 and enforced as a rule of Court, does not apply to an order of Quarter 
 Sessions to abate a nuisance, made after the trial of an indictment for 
 the nuisance, (r) 
 
 The 5 Will. & M. c. 11, s. 3, enacts, that if a defendant prosecuting 
 a writ of certiorari (as mentioned in the Act) be convicted of the 
 offence for which he is indicted, the Court of King's Bench shall give 
 reasonable costs to the prosecutor if he be the parti/ grieved, or be a 
 justice, &c, or other civil officer, who shall prosecute for any fact that 
 concerned them as officers to prosecute or present. Upon this clause 
 it was decided, that persons dwelling near to a steam-engine, which 
 emitted volumes of smoke affecting their breath, eyes, clothes, furni- 
 ture, and dwelling-houses, and prosecuting an indictment for such 
 nuisance, were parties grieved entitled to their costs : the defendants 
 had removed the indictment from the sessions by certiorari, and been 
 convicted, (s) 
 
 The 1 & 2 Geo. 4, c. 41, reciting the great inconvenience and injury 
 sustained from the improper construction and negligent use of fur- 
 naces employed in the working of engines by steam, and that though 
 such nuisance being of a public nature, is abateable as such by indict- 
 ment, the expense had deterred parties suffering thereby from seeking 
 the remedy given by law, enacts that ' it shall and may be lawful for 
 the Court by which judgment ought to be pronounced in case of con- 
 viction on any such indictment, to award such costs as shall be deemed 
 proper and reasonable to the prosecutor or prosecutors, to be paid 
 by the party or parties so convicted as aforesaid : such award to be 
 made either before or at the time of pronouncing final judgment, as to 
 the Court may seem fit.' 
 
 (o) R. v. Pappineau, siqira. 9 Co. 53. (q) R. v. Stead, 8 T. R. 142. R. v. The 
 
 Godb. 221. Justices of Yorkshire, 7 T. R. 468. 
 
 (p) Co. Ent. 92b. (r) R. v. Bateman, 27 L. J. M. C. 95. 
 
 (s) R. v. Dewsnap, 16 East, 191.
 
 760 What a Public Highway. [book ii. 
 
 Sec. 2, ' if it shall appear to the Court by which judgment ought to 
 be pronounced that the grievance may be remedied by altering the 
 construction of the furnace, it shall be lawful for the Court, without 
 the consent of the prosecutor, to make such orders as shall be by the 
 Court thought expedient for preventing the nuisance in future, before 
 passing final sentence on the defendant.' 
 
 Sec. 3, 'the provisions relating to the payment of costs and the 
 alteration of furnaces, shall not extend to the owners or occupiers of 
 any furnaces of steam-engines, erected solely for the purpose of work- 
 ing mines of different descriptions, or employed solely in the smelting 
 of ores and minerals, or in the manufacturing the produce of ores or 
 minerals, on or immediately adjoining the premises where they are 
 raised.' 
 
 The Public Health Act, 1875, contains numerous excellent pro- 
 visions for the removal of nuisances and the prevention of diseases, 
 but they do not fall within the scope of this work. 
 
 Sec. II. 
 
 Of Nuisances to Public Highways. 
 
 We may consider this subject in the following order : — 
 What is a public highway. 
 Of nuisances to a highway by obstruction. 
 Of nuisances to a highway by the neglect to repair. 
 The Highways Acts, and the Public Health Act, 1875, as to 
 highways. 
 
 What is a Public Highway. 
 
 The word highway originally denoted a public way, which was 
 raised above the level of the lands through which it ran. 1 Such ways 
 are of extreme antiquity. When the Israelites asked leave to pass 
 through Edom, they said, (t) 'We will go by nboo,' the raised road 
 or highway, (u) And it is very remarkable that the same way is called 
 just before, (v) v?n VI, the king's track (w) or way. So that here 
 we have the well-known expression, ' the king's highway,' which in 
 our old records is alta regia via, (x) and in our Year Books haut 
 chemin le Boy. (y) Long ago, however, highway has been applied not 
 only to every public way on land but also on water. 
 
 (/) Numb. xx. 19. from the Hebrew word, d being changed into 
 
 (u) Isai. lxii. 11, shows this to be the t, or from the Arabic, which is from the 
 
 correct meaning of the word. Hebrew with a similar change. 
 (v) Numb. xx. 17. (x) 2 Inst. 701. 
 
 {w) The English word ' track ' is either (y) 33 Hen. 6, 26. 
 
 American Note. 
 1 The definition of a highway in America and notes. The question of liability to repair 
 is found to differ in the different States, is not regulated by common law, but entirely 
 Some of the cases are collected in Mr. by statute, see Bishop ii. s. 1281. 
 Bishop's New Criminal Law, Vol. ii., s. 1267
 
 chap. xxxn. § ii.] Of Nuisances to Highways. 7G1 
 
 Highway is said to be the genus of all public ways ; (z) of which 
 there are three kinds : a footway ; (a) a foot and horseway, which is 
 also a pack and prime-way ; and a foot, horse and cartway, (b) What- 
 ever distinctions may exist between these ways, it seems to be clear 
 that any of them, when common to all the King's subjects, whether 
 directly leading to a market town, or beyond a town as a thoroughfare 
 to other towns, or from town to town, may properly be called a high- 
 way; and that the last, or more considerable of them, has been usually 
 called the King's highway, (c) , But a way to a private house or for 
 the benefit of particular persons only, is not a highway, because it 
 belongs not to all the King's subjects, (d) 
 
 It has been expressly held, that there may be a public way over 
 a place which is commonly called a cul de sac, and that it is a question 
 for the jury whether it does exist or not. Where therefore a court 
 opening into a public street had no thoroughfare through it, but 
 contained fourteen or fifteen houses, and had been paved by commis- 
 sioners under the 12 Geo. 3, c. 68, and always lighted by the parish, 
 and the jury found that it was a public highway ; it was held that 
 there might be a highway under these circumstances, (e) So a large 
 square with only one entrance, or a promenade, the owner of which 
 has, for many years, permitted all persons to go into and round it, 
 may become a public highway. (J) 
 
 A question here presents itself whether there may not exist a pub- 
 lic right of walking over a close in every direction though there be 
 but one entrance to the close. There certainly may be such a private 
 right. A plaintiff alleged a right of private way over and along a 
 terrace walk, and a user of that way for many years was proved, 
 and also a grant of the free liberty, use, benefit and privilege of the 
 terrace walk with other inhabitants ; it was objected that the right 
 proved was not a right of way, but a right to use the walk for plea- 
 sure only ; and that the right was altogether different from the right of 
 way claimed, but was like the privilege which the builder of a square, 
 who reserves the centre for a garden common to all the houses, grants 
 to the tenants of the houses of walking about the garden ; but the 
 objection was overruled. Patteson, J., ' I do not understand the 
 distinction that has been contended for between a right to walk, 
 pass and repass, forwards and backwards over every part of a close, 
 and a right of way from one part of a close to another. What is a 
 
 (z) R. v. Saintiff, 6 Mod. 255. the description was sufficient. Allen v. 
 
 (a) Where a perambulator, eighteen Ormond, 8 East, 4. 
 
 inches wide and fourteen pounds weight, (d) 1 Hawk. P. C. c. 76, s. 1. So by 
 
 was pushed along a public footway leading Hale, C. J., in Austin's case, 1 Vent. 189. 
 from a road into a square, Byles, J., left itto (c) Bateman v. Buck, 18 Q. B. 870. R. 
 
 the jury to say whether this was a usual v. Marchioness of Downshire, 4 A. & E. 232. 
 
 accompaniment of a large class of foot pas- 5 N. & M. 662. See also Williams's case, 
 
 sengers, and so small and light as neither to 5 Co. 72 b, 2 Roll. 84, pi. 15. R. v. Kernel], 
 
 be a nuisance to other passengers or injurious 6 East, 315. Where, however, access to a 
 
 to the soil. R. v. Mathias, 2 F. & F. 570. highway has been legally stopped at both 
 
 The jury were discharged. ends it ceases to be a public highway, Bailey 
 
 (b) Co. Lit. 56 a. v. Jamieson, 1 C. P. D. 329. 
 
 (c) Id. ibid. 1 Hawk. P. C. c. 76, s. 1. (/) Per Lord Campbell, C. J., ibid. 
 Bac. Abr. tit. Highivays(A.). And in a case Campbell v. Lang, 1 Macq. Sco. Ap.C. 451. 
 where the terminus ad quern was laid to be a Young v. Cuthbertson, 1 Macq. Sco. Ap. C. 
 public highway, and it appeared in evidence 455. See R. v. Hawkhurst, post, p. 766. 
 that it was a public footway, it was held that
 
 762 What a Public Highway. [book ii. 
 
 riglit of way but a right of way to go forwards and backwards from 
 one place to another ? ' Wightman, J., ' The right proved is a right of 
 passage backwards and forwards over every part of the close; the 
 riglit claimed is less than this ; but it is included in it, being a right 
 of way from one part of the close to another.' (</) In an old case a 
 defendant prescribed that all the inhabitants of a vill from time 
 immemorial had been used to dance in a close at all times of the 
 year at their free will for their recreation, and it was held that this 
 was a good custom, (h) Xow coupling these decisions with those 
 as to public highways where there are no thoroughfares, it may fairly 
 be inferred that the public may in point of law have a right of passing 
 and repassing over every part of a close, whatever its shape or size 
 may be ; but the shape, size, and circumstances must be taken into 
 consideration by the jury when determining whether the right of 
 way exists. Where a place had been an open place in Epping Forest, 
 and people had always been used to go over it, as over the rest of 
 the forest, wherever they liked and wherever they could, but there 
 was no distinct evidence of any definite way in any particular direc- 
 tion, and though there were tracks from time to time, which might 
 last for a few weeks or months, there was no beaten or enduring 
 track which had lasted for years ; Wightman, J., directed the jury 
 that if they thought that there was no regular way, but that people 
 merely went where they liked, they should find against the right of 
 way. (0 
 
 It is not to be understood by the term cart-way, that the way is 
 to be used only with the particular vehicle called a cart ; for if it 
 is a common highway for carriages, it is a highway for all manner 
 of things. (J) Many public highways however, as a footway, are 
 to be used only in a particular mode. Thus, though a towing-path 
 is to be used only by horses employed in towing vessels, yet it is a 
 common highway for that purpose, (k) And where a railway or 
 tram-road was made under the authority of an Act of Parliament, by 
 which the proprietors were incorporated, and by which it was pro- 
 vided that the public should have the beneficial enjoyment of it, 
 such railway or tram-road was taken to be a public highway. (I) 
 
 The number of persons who may be entitled to use the way, or 
 may be obliged to repair it, will not make it a public way, if it be 
 not common to all the King's subjects. Thus, where the commis- 
 sioners under an inclosure Act set out a private road for the use 
 of the inhabitants of nine parishes, directing the inhabitants of six 
 of those parishes to keep it in repair, it was held that no indictment 
 could be supported against those six parishes for not repairing it, 
 because it did not concern the public, (m ) 
 
 (<,') Duncan v. Louch, 6 Q. B. 904. had been regularly used by the public. See 
 
 (/<) Abbot v. Weekly, 1 Lev. 177, cited also Chapman v. Cripps, 2 F. & F. 864. S. 
 
 by Lord Cranworth, C, in Young v. Cuth- P. per Erie, C. J. 
 
 bertson, supra. See Mounsey v. Ismay, (/) R. v. Hatfield, Cas. temp. Hardw. 
 
 1 H. & C. 729. 315. S. C. 8. East, R. 6 (a). 
 
 {i) Schwinge v. Dowell, 2 F. & F. 845. (k) Per Bayley, J., in R. v. Severn and 
 
 There was a similar case at Gloucester where Wye R. Co., 2 B. & A. 648. 
 
 a way was claimed over a common ; and (/) R. v. Severn and Wye R. Co., 2 B. & 
 
 Littledale, J., very strongly directed the jury A. 646. 
 
 that they could hot find that there was a ( m ) R. v. Richards, 8 T. R. 634. 
 
 right of way unless some one particular line
 
 chap. xxxn. § n.] Oj Nuisances to Highways. 763 
 
 Though a highway is said to be the King's, yet this must be under- 
 stood as meaning that in every highway the King and his subjects 
 may pass and repass at their pleasure ; for the freehold and all the 
 profits, as trees, mines, &c, belong to the lord of the soil, (n) The 
 rights, however, of the owner of the soil will be subject to those of 
 the public as to their exercise of their right of way in its full extent, (o) 
 Where a way is dedicated to the public the owner of the soil does not 
 transfer his property in it. (p) 
 
 A way may become a public highway by a dedication of it, by 
 the owner of the soil, to the public use. Thus where the owners 
 of the soil suffered the public to have the free passage of a street 
 in London, though not a thoroughfare, for eight years, without 
 any impediment (such as a bar set across the street, and shut at 
 pleasure, which would show the limited right of the public), it 
 was held a sufficient time for presuming a dedication of the way 
 to the public, (q) So where a street, communicating with a public 
 road at each end, had been used as a public road for four or five 
 years, it was held the jury might presume a dedication, (r) And 
 though if the land had been under lease during that time, or even 
 for a much longer period, the acquiescence of the tenant would 
 not have bound the landlord, without evidence of his knowl- 
 edge ; (s) yet it was held that where a way had been used by 
 the public for a great number of years over a close in the hands of 
 a succession of tenants, the privity of the landlord, and a dedication 
 by him to the public might be presumed, although he was never 
 in the actual possession of the close himself, and was not proved to 
 have been near the spot, (t) And it was also held in this case that 
 where a way had been so used, notice of the fact to the steward is 
 notice to the landlord, (u) In a case where it appeared that a 
 passage, leading from one part to another of a public street, 
 (though by a very circuitous route) made originally for private 
 convenience, had been open to the public for a great number of 
 years, without any bar or chain across it, and without any inter- 
 ruption having been given to persons passing through it, it was 
 ruled, that this must be considered as a way dedicated to the 
 public, (v) But the erection of a bar, to prevent the passing of 
 carriages, rebuts the presumption of a dedication to the public; 
 although the bar may have been long broken down, (w) Where 
 
 (n) Bac. Abr. tit. Highways (B. ). Com. (q) Trustees of the Rugby Charity v. 
 
 Dig. Chemin (A.) 2. The Marquis of Salis- Merryweather, 11 East, 375. Woodyer v. 
 
 bury v. G. N. R. Co., 5 C. B. (N. S.) 174. Hadden, 5 Taunt. 125, post, p. 764. 
 The presumption that the soil of a road usque (r) Jarvis v. Dean, 3 Bing. 447; the 
 
 ad medium fil am vice belong to the owners street was neither paved nor lighted, but 
 
 of the adjoining lands applies to both public highway and paving rates had been paid, 
 ami private roads. Holmes v. Bellingham, (s) Trustees of the Rugbv Charity v. 
 
 7 C. B. (N. S.) 329. Berridge v. Ward, 10 Merryweather, 11 East, 375. SVoodfl. Veal, 
 
 C. B. (N. S.) 400. Smith v. Howden, 14 C. post,?. 448. 
 
 B. (N. S.) 398. R. v. Strand Board of ' (t) R. v. Barr, 4 Camp. 16. 
 Works, 4 B. & S. 526. («) Id. ibid. 
 
 (o) As to the right of the public to go on (v) R. v. Lloyd, 1 Camp. 260. 
 
 the adjoining land when the way is so (w) Roberts v. Karr, cor. Heath, J., 
 
 foundrous and out of repair as to become Kingston Lent Ass. 1808. 1 Campb. 261, 
 
 impassable or dangerous, see post. note (b). Lethbridge v. Winter, Somerset 
 
 (/?) Sir John Lade v. Shepherd, 2 Str. Spr. Assiz. 1808, cor. Marshal, Serjt. 1 
 
 1004. Campb. 263, in the note.
 
 764 What a Public Highway. [book ii. 
 
 land is vested in fee in trustees for certain public purposes, they may 
 dedicate the surface to the use of the public as a highway, provided 
 such use be not inconsistent with the purposes for which the land is 
 vested in them. Commissioners for drainage, being authorized by an 
 Act to make drains and dispose of the earth in forming banks on the 
 sides thereof, made a drain, and with the earth taken from it made 
 a bank on one side of it, which had been used for twenty-five years, 
 as a public highway : it not appearing that the cleansing of the drains 
 or any other purpose of the Act had been or was likely to be inter- 
 fered with by such user of the soil, it was held that a dedication 
 might be made by the commissioners, (x) So when land was acquired 
 and used by a canal company for the purposes of a towing-path and 
 it appeared that the use of it as a public foot-path was not inconsis- 
 tent therewith, it was held that the company could dedicate the land as 
 a foot-path subject to its use as a towing-path, (y) A canal company 
 therefore may dedicate a way to the public, as other persons or cor- 
 porate bodies may do. They are the masters of their own property ; 
 and though they may be answerable to the rest of the proprietors 
 for failure of duty, there is no reason why the public may not by 
 user gain a right of way against them as well as against any other 
 individuals, (z) But it seems that there must be some owner who 
 can dedicate the way to the public, otherwise the road will not be- 
 come a public way. (a) In every case the facts must be such as are 
 sufficient to show that the owner meant to give the public a right 
 of way over his soil, before a dedication by him will be presumed, (b) 
 And nothing clone by a lessee without the consent of the owner of the 
 fee will give a right of way to the public. Thus in a case of an 
 action of trespass, and a justification under a public right of way, the 
 facts were, that the place in question, which was not a thoroughfare, 
 had been under lease from 1719 to 1818; but had been used by the 
 public, as far back as living memory could go ; and had been lighted, 
 paved and watched, under an Act of Parliament, in which it was 
 mentioned as one of the streets of Westminster ; and that the plain- 
 tiff, who inclosed it after 1818, had previously lived for twenty-four 
 years in its neighbourhood. But it was held, that even under these 
 circumstances the jury were well justified in finding that there was 
 no public right of way, inasmuch as there could be no dedication to 
 the public by the tenants for ninety-nine years, nor by any one, 
 except the owner of the fee. (c) There cannot be a public way by 
 dedication, unless there be some evidence to show that the owner 
 has consented to the use of the way ; the consent of the lessee is not 
 sufficient, because it cannot bind the owner of the inheritance. A 
 public footway over crown-land was extinguished by an inclosure 
 Act, but for twenty years after the inclosure took place the public 
 continued to use the way ; it was held that this use was not evidence 
 
 (x) R. v. Leake, 5 B. & Ad. 469. 2 X. (z) The Surrey Canal Co. v. Hall, 1 M. 
 
 & M. 583. The Board of Works for Green- & G. 392. See this case, post, p. 768. 
 wich District v. Maudsley, 39 L. J. Q. B. («) R. v. Edmonton, 1 M. & Rob. 24. 
 
 205. See the case, post. 
 
 (y) Grand Junction Canal Co. v. Petty, (o) Woodyer v. Hadden, 5 Taunt. 125. 
 
 21 Q. B. D. 273. R. v. Hudson, 2 Str. 909. 
 
 (c) Wood v. Veal, 5 B. & A. 454.
 
 chap. xxxn. § ii.] Of Nuisances to Highways, 705 
 
 of a dedication to the public, as it did not appear to have been with 
 the knowledge of the Crown, (d) If there be an old way running 
 along the side of my land, and, by my fences decaying, the public 
 come on my land, that is no dedication, (e) 
 
 In order to constitute a valid dedication to the public of a high- 
 way by the owner of the soil, it is clearly settled that there must be 
 an intention to dedicate — there must be an animus dedicandi — of 
 which the user by the public is evidence and no more ; and a single 
 act of interruption by the owner is of much more weight upon a 
 question of intention to dedicate than many acts of enjoyment \ m {f) 
 but it is sufficient to show that there has been such a user by the 
 public as satisfies the jury that a dedication to the public was in- 
 tended by the owner, whoever he might be. Thus where a road had 
 originally been set out under a private inclosure Act over part of the 
 waste of a manor, and had been used by the public generally ever 
 since it had been so set out, being a period of fifty years, and a por- 
 tion of the waste had been allotted to the lord in respect of his inter- 
 est in the soil, it was contended that the soil of the road had been 
 taken out of the lord, and transferred to no other person, and that 
 therefore there was no owner or none against whom a dedication 
 could be presumed; for that there must have been an owner who 
 knew that he was so, or his consent to the public user could not be 
 presumed; and that if the crown were the owner, stronger evidence 
 w T ould be necessary to raise a presumption of a dedication than if the 
 owner had been a private person. But the Court of Queen's Bench 
 held that a dedication might be presumed even against the crown 
 from long acquiescence in public user, and that the jury were rightly 
 directed to consider whether the owner, whoever he might be, had 
 consented to the public user in such a manner as to satisfy the jury 
 that he intended to dedicate a highway to the public. (</) 
 
 On an indictment for obstructing a highway it appeared that the 
 way had been laid out as a projected street in 1827, and used as a 
 highway till 1836, when the defendants began to obstruct it, and 
 soon after enclosed a part of the road. The owners of the soil of 
 the greater part of the road brought ejectment ; and, after negotiations 
 between them and the defendants, the latter agreed to open the road, 
 but finally in 1853 broke off the negotiations, assigning as a reason 
 that they had, since the negotiations commenced, acquired the fee 
 of another part of the road, on which was the obstruction in question. 
 It was shown that that spot had been part of an estate settled in 
 strict settlement in 1823, on a tenant for life, with power to grant 
 building leases, and for the trustees of the settlement to sell with the 
 consent of the tenant for life. The first tenant in tail was an infant 
 at the time of the trial. The tenant for life proved that in 1828 the 
 whole of the property had been sold by his trustees, and that he had 
 
 (d) Harper v. Charlesworth, 4 B. & C. (g) R. v. East Mark, 11 Q. B. 877. Per 
 574; 6 D. & R. 572. Baxter v. Taylor, 4 Lord Denman, C. J. ' Enjoyment for a great 
 B. & Ad. 72 ; 1 N. & M. 13. length of time ought to be .sufficient evidence 
 
 (e) The Trustees of the British Museum of dedication, unless the state of the property 
 v. Finnis, 5 C. & P. 460. Patteson, J. has been such as to make dedication impos- 
 
 ( f) Per Parke, B. Poole v. Huskinson, sible.' 
 11 M. & W. 827.
 
 766 Dedication. [book ii. 
 
 had nothing to do with it since. The jury were told that there was 
 evidence that the way had been for several years actually used by 
 the public, from which user a dedication might be inferred, and were 
 asked whether they inferred that there was a dedication, and at what 
 time and by whom ; and they found that there was a dedication in 
 1829 by whoever was then owner of the fee. And it was held that 
 this direction was right ; for when there is satisfactory evidence of 
 such a user of a road, as to time, manner and circumstances, as would 
 lead to the inference that there was a dedication by the owner of the 
 fee, if it was shown who he was, it is not necessary to inquire who 
 the individual was from whom the dedication, necessarily inferred 
 from such user, first proceeded ; and when such user is proved the 
 onus lies on the person who seeks to deny the inference from it, to 
 show negatively that the state of the title was such that that dedica- 
 tion was impossible, and that no one capable of dedicating existed : 
 that here the statement of the defendants that they acquired the 
 fee in 1 853, and of the tenant for life that he had had nothing to do 
 with the property since 1828, was evidence that the fee was not sub- 
 ject in 1829 to the settlement: and therefore that there was nothing 
 to rebut the inference from the public user at that time, (h) 
 
 From evidence of acts of user of a footway by the public extend- 
 ing over the whole time of living memory, during which time, how- 
 ever, the land over which the way passed had been under lease, a 
 jury may presume against the reversioner a dedication of the way by 
 his ancestors to the public at a period anterior to the land having first 
 been leased, (i) 
 
 It is not enough, however, to establish the right of the public, that 
 the persons using the way reasonably believed, from the conduct of the 
 owner, that they had acquired a right to ii; an actual intention on the 
 part of the owner to dedicate must be shown, (j) 
 
 Where it appeared that a road ran from a highway to the lodge of a 
 park as a carriage-way, but there was no road through the park but a 
 bridleway leading to another highway ; the park gates were some- 
 times locked, but persons on foot and on horseback were allowed to 
 pass through the park ; but after rain, when the road was liable to be 
 cut up, carriages were refused admission : there was no actual thor- 
 oughfare beyond the park gates, but there were private roads leading 
 from the road to two farms ; the surveyor of highways had been in 
 the habit of taking stone from the park to repair the road, and had, 
 after supplying other stone, used the whole for the purpose of repair ; 
 the parish, in conjunction with the adjoining parish, had done the re- 
 pairs from time immemorial ; and the road was used by every one who 
 thought fit to use it, but there had not been any user of the road by 
 the public except for the purpose of going to the park to seek admis- 
 sion there ; and it was held that this was not such a dedication as 
 would make the road a public highway, (k) 
 
 (h) E. v. Petrie, 4 E. & B. 737. (k) E. v. Hawklmrst, 7 Law T. 268. 
 
 (i) Winterbottom v. The Earl of Derby, Cockburn, C. J., thought the facts explained 
 
 36 L. J. Ex. 194. the user; and Wightman, J., thought the 
 
 (j) Hall v. Crawford, Q. B. E. T. 1860. repairs might be referred to the bridleway. 
 
 P.ateman's Highw. Acts, 23. See E. v. See Mildred v. Weaver, 3 F. & F. 30. 
 Broke, 1 F. & F. 514.
 
 chap, xxxii. § ii.] Of Nuisances to Highways. 70 7 
 
 Where there was a piece of garden ground in front of a house, with 
 a fence on the side of a footpath and a road respectively, and there 
 was a gate, which was kept holted, at the footpath side, leading to the 
 door of the house, and also gate-posts, hut no gate near to the house 
 at the road side, and people had frequently passed across the garden, 
 but the defendant swore that they had no right to go that way, and 
 that he had repeatedly sent persons back; it was held that there was 
 no evidence to go to the jury of a public way. (/) 
 
 In determining whether or not a way has been dedicated to the 
 public, the intention of the proprietor must be considered. If it 
 appear only that he had suffered a continual user, that may prove a 
 dedication ; but such proof may be rebutted by evidence of acts show- 
 ing that he contemplated a licence only, resuniable in a particular 
 event. Thus where the owner of land agreed with the Thorncliffe 
 Iron Company, and with the inhabitants of a hamlet repairing its own 
 roads, that a way over his land should be open to carriages, that the 
 company should pay him £5 a year, and supply cinders for the repair 
 of the road, and that the hamlet should lead and spread them, and 
 from that time the road was used as a carriage-road without obstruc- 
 tion for nineteen years, when disputes arose, and the passage along the 
 road with carriages was interrupted, and the interruption acquiesced 
 in for five years; it was held that the evidence showed no dedication, 
 but only a licence to use the road, resuniable on breach of the agree- 
 ment, (m) So where in order to show that a road is a public highway 
 evidence is given that repairs have been done to it by the surveyor of 
 highways, it is competent to prove an agreement between the surveyor 
 and an agent of a landowner, which tends to explain such repairs, 
 and to show that the road had not been repaired as a parish road, but 
 under a private bargain, (n) 
 
 Where the owner of the soil has been under a compulsory obliga- 
 tion to permit a qualified passage over his soil, the circumstance of a 
 general passage having been used by the public for many years will 
 not lead to the conclusion of a dedication to the public. Thus where 
 a road was set out by commissioners under a local Act, and certain 
 persons only were by the Act to use it, but in fact it had been used 
 by the public for nearly seventeen years, it was held, that this was 
 not sufficient evidence of a dedication to the public, (o) But a private 
 road, set out under an enclosure award, may, upon proof of sufficient 
 user by the public before the passing of the Highway Act, 5 & 6 W. 
 4, c. 50, be deemed to be a highway which the parish or township is 
 compellable to repair, though the award provides that such road is 
 for ever thereafter to be kept in repair by the owners or occupiers of 
 adjoining lands. (/;) 
 
 Where a canal company were required to make and maintain 
 bridges over a canal for the use of the owners and occupiers of ad- 
 joining lands, and also where the canal was carried across any high- 
 way, bridleway or footpath ; and in 1804 the company erected a 
 
 (?) Stone v. Jackson, 16 C. B. 199. (o) R. v. St. Benedict, 4 P.. & A. 447. 
 
 (m) Barraclough v. Johnson, 8 Ad. & E. R. v. Bradfield, 43 L. J. M. C. 155. 
 99 ; 3 N. & P. 233. (p) R. v. Bradfield, supra. 
 
 (n) Ferrand v. Milligan, 7 Q. B. 730.
 
 768 Dedication, [book ii. 
 
 swivel bridge at a spot where there was a public bridleway and foot- 
 way, which bridge, as a carriage-way, was intended to be for the exclu- 
 sive accommodation of the tenants of an adjoining estate. From 1810 
 to 1822 the public occasionally used the bridge with carriages. In 
 1822 a church was built near to the canal, streets were formed, and 
 the neighbourhood became very populous. From 1822 to 1832 the 
 bridge was used by the public as a carriage-way, without interrup- 
 tion. In 1832 the company began to exact a toll from persons not 
 tenants of the adjoining estate crossing the bridge with carriages, and 
 in 1834 they removed the swivel bridge, and built a stone bridge in 
 its stead. It was held that the evidence warranted the jury in find- 
 ing that there had been a dedication. The fact of the public having 
 the uninterrupted use of the way from 1822 to 1832 was a strong 
 ground for inferring an intention on the part of the company to 
 dedicate the way to the public. But if the matter rested on what 
 took place since 1834, it could not be said that there had been a dedica- 
 tion to the public ; but the previous period must be looked at, and if 
 the public had acquired a right of way along the swivel bridge, the 
 circumstance of the company erecting the stone bridge in its place 
 could not have the effect of destroying that right, (q) Upon an in- 
 dictment for encroaching upon a public highway, it appeared that in 
 1771, commissioners under an inclosure Act had been empowered to 
 set out public and private roads, the former to be repaired by the 
 township, the latter by such persons as the commissioners should 
 direct. The public roads were to ' be and remain sixty feet in breadth 
 between the fences.' The road in question was described in the 
 award as a private road, and of the width of eight yards ; but in fact 
 a space of sixty feet w r as left between the fences till the time of the 
 alleged encroachment. The centre of this space was commonly used 
 by the public as a carriage -road, and had been repaired by the town- 
 ship for eighteen years before the encroachment. The space said to 
 be encroached upon was at the side of this road, and there was a 
 diversity of evidence as to the use made of this space by the public, 
 and its condition since the time of the award. The commissioners, 
 in their award, directed that the township should repair as well the 
 public as the private ways. Parke, J., in summing up, observed that 
 the commissioners had exceeded their authority in awarding that a 
 private road should be repaired by the township ; (?•) but he left it 
 to the jury to decide, whether the road, though originally meant to 
 be a private one, had not subsequently been dedicated to the public, 
 and they found a verdict of guilty, and it was held, that the case was 
 for the jury, and that they had found a proper verdict, (s) 
 
 It seems that there may be a partial dedication of a way, although 
 doubts have been entertained upon the subject. Where the owner of 
 an estate permitted the public to use a road for several years for all 
 purposes except that of carrying coals, Bayley and Holroyd, JJ., 
 thought there might be such a partial dedication, (t) So where an 
 
 (q) Surrey Canal Company v. Hall, 1M. {/) Marquis of Stafford v. C'oyney, 7 B. 
 
 & G. 392. & C. 257. Littledale, J., doubted. And 
 
 (r) R. v. Cottingham, 6 T. R. 20. see Cowling v. Higginson, 4 M. & W. 245. 
 
 (s) R. v. Wright, 3 B. & Ad. 681. See 
 
 this case, post.
 
 chap. xxxn. § ii.] Of Nuisances to Highways. 769 
 
 indictment for non-repair of a bridge used ' at all such times as and 
 when it has been or is dangerous to pass through the river by the side 
 of the bridge,' was objected to because it did not show the bridge to be 
 a public bridge, but only a bridge to be used on particular occasions. 
 Lord Ellenborough, C. J., said that, though it must be an absolute 
 dedication to the public, still it might be definite as to time, and the 
 Court overruled the objection, (u) 
 
 The correct distinction in cases of this kind appears to be that 
 there may be a dedication of a way to the public for a limited purpose, 
 as for a footway, horseway, or driftway ; but there cannot be a dedi- 
 cation to a limited part of the public, as to the inhabitants of a parish 
 and persons resorting to their houses, (v) Thus there may be a dedi- 
 cation of a highway, subject to a partial interruption during the con- 
 tinuance of a fair or market for a certain limited and not unreasonable 
 time, (w) So where in front of a line of houses there was a footway ; 
 then a space thirty-three feet wide between the footway and a car- 
 riage-way, and the occupiers of the houses had always made use of so 
 much of the intermediate space as was opposite to their respective 
 houses, in such manner as suited their trades or occupations ; but the 
 public had at all times passed over the intermediate space as of right 
 subject to such use of it by the occupiers; the Court of Queen's Bench 
 seem to have been of opinion that this was a dedication to the public, 
 subject to such use by the occupiers, (x) So where there had been a 
 public highway over a quay in front of certain houses, and as far as 
 living memory went there had been a user by the occupiers thereof 
 to deposit anchors and other incumbrances thereon, the Court of 
 Exchequer thought that in point of law a dedication might have been 
 made subject to such use. (y) 
 
 A highway may be dedicated with obstructions or impediments 
 which, if made in an existing highway, would be a nuisance. Thus 
 where a cellar had an opening into a footway, which was open during 
 the day, but shut at night with a flap which slightly projected above 
 the footway, and this state of things had existed as far as living 
 memory went ; it was held that the jury ought to draw the conclu- 
 sion that it had existed as long as the footway, and that the dedica- 
 tion of the way to the public was with the reservation of the flap 
 being continued there, and accepted by them subject to the incon- 
 venience arising from it ; and that such a dedication might lawfully 
 be made, and consequently that the flap was no nuisance, though it 
 would have been otherwise if it had been placed in an existing 
 footway, (z) 
 
 In front of the house of the appellant, situate in a London square, 
 was an area and cellar. The cellar was formed of brick walls, one 
 forming the outer walls of the area, and another running parallel to 
 such outer wall. The covering to the cellar was formed of large flag- 
 
 (u) R. v. Northampton, 2 M. & S. 262. (y) Morant v. Chamberlin, 6 H. & N. 
 
 See R. v. Marquis of Buckingham, 4 Camp. 541. 
 
 N. P. 189 ; Roberts v. Karr, 1 Camp. N. P. (2) Fisher v. Prowse, 2 B. & S. 770. See 
 
 3, 262, n. Robbins v. Jones, 15 C. B. N. P. 221. S. P. 
 
 (i>) Poole v. Huskinson, 11 M. & W. 827. as to projecting steps, Cooper v. Walker, 
 
 (w) Elwood v. Bullock, 6 Q. B. 383. ibid. 
 
 (x) Le Neve v. Vestry of Mile End Old 
 Town, 8 E. & B. 1054. 
 
 VOL. 1. — 49
 
 770 Dedication. [book ii. 
 
 stones, the ends of which rested on the walls. From the year 1830, 
 when the houses were built and the flagstones were laid down, the 
 flagstones were used by the public as a footway, and became, by 
 reason of the traffic, worn down, cracked, and dangerous. The vestry 
 called upon the appellant to repair the cellar and its covering. He 
 refused to do so, whereupon the vestry did the work, and proceeded 
 against him to recover the expenses. Held, that the vestry were 
 bound to keep the flagstones in repair, and could not recover from the 
 appellant any part of the expenses of doing so. (a) The respondent 
 was owner and occupier of premises consisting of a yard, building, 
 and railway arches, in a Metropolitan parish. These premises abutted 
 upon a highway consisting of a foot-pavement and roadway, and had 
 a gateway opening on to the pavement. For sixty years and upwards, 
 whenever the occupier of premises abutting on the footway wished to 
 have access to them across the footway for carts, &c, it was the prac- 
 tice for him to apply to the highway board or vestry for permission 
 to construct the necessary way, which was usually granted. The 
 respondent, after taking possession of his premises, began to use them 
 for the deposit of heavy machinery, the only use, owing to the char- 
 acter of the neighbourhood, to which they could be put. He at first 
 conveyed the machinery across the causeway by means of rollers and 
 levers, but this being objected to as an obstruction of the thorough- 
 fare, he applied to the vestry for leave to take up the pavement and 
 make a carriage way. This leave was refused, and he then conveyed 
 it to and from his premises in waggons across the flagged footway. 
 The weight of the machinery in the waggons crushed the paving 
 stones and obstructed the way, and the appellants took out a sum- 
 mons against him under 5 & 6 Will. 4, c. 50, s. 72, for a nuisance. 
 The magistrate dismissed the summons, finding, as a fact, that ' the 
 premises could not be reasonably enjoyed without access over the 
 existing footway, and that the rights of ownership and those of 
 the public might be jointly exercised consistently with the general 
 welfare.' Held, upon a case raising the question whether the magis- 
 trate was bound to convict, that the respondent was entitled to judg- 
 ment, since the owner of land, who dedicates part of it as a public way, 
 may enjoy all rights not inconsistent with the dedication, and that 
 the respondent did not appear to have exceeded these rights, (b) A 
 footway across an arable field had from time immemorial at all times 
 of the year been used by all persons, as of right, but the occupier of 
 the field and his predecessors had also from time immemorial, in 
 ploughing the field, ploughed up the footway in such parts as they 
 thought fit, and in other parts lifted the plough across it. Held by 
 the Court of Exchequer Chamber, upholding the decision in Mercer v. 
 Woodgate, 39 Law J. Eep. M. C. 21, that the surveyors of the parish 
 highways were not justified in repairing the way with hard materials, 
 so as to prevent it from being ploughed, or the plough from being 
 lifted over it, so easily as before, as it must be presumed to have 
 been dedicated to the public, subject to the inconvenience of being 
 occasionally ploughed up. (c) In a high street in the town and 
 
 (a) Hamilton v. The Vestry of St. (b) The Vestry of St. Mary Newington v. 
 
 George's, Hanover Square, 43 L. J. M. C. Jacobs, 41 L. J. M. C. 72. 
 41. (c) Arnold v. Blaker, 40 L. J. Q. B. 1S5.
 
 chap, xxxii. § ii.] Of Nuisances to Highways. 771 
 
 manor of C. there was a market house belonging to the lord. This 
 manor, together with the market, belonged to the Crown in the reign 
 of Henry III. As far back as living memory extended, various tolls 
 had been paid for the use of the market, for articles hawked about 
 the town, and for stalls and standings for the sale of articles erected 
 in the street. One of these tolls was a shilling for every cart-load of 
 fish, fruit, and vegetables hawked about the town, and for which no 
 toll had before been paid in the market. Held, that there was evi- 
 dence that the toll had been paid from time immemorial, so that a 
 legal origin of the claim would, if possible, be presumed ; that, if any 
 objection were made to the antiquity of the toll on the score of rank- 
 ness, it might still be supported as a reasonable toll, the amount 
 varying from time to time according to the varying value of money ; 
 that, if such an objection were unanswerable, the claim might be sus- 
 tained as to a toll granted or reserved within time of memory, by 
 presuming a dedication by the Crown of the street to the public since 
 the time of Henry III., which would be a good consideration for a 
 grant or reservation of the toll claimed, as it was not toll thorough, 
 or a toll for the mere use of the way, but imported a licence to 
 rest and stay upon the land for the purpose of selling marketable 
 commodities, (d) 
 
 AVliere a private right of way already exists, the owner of the 
 land over which it runs can only dedicate that land to the public 
 subject to such private right ; for he can give nothing but what he 
 himself has, i. e., a right of user not inconsistent with the private 
 easement ; (e) and the acquiring a right of way by the public does 
 not destroy a previously existing private right of way over the same 
 line, if) 
 
 But there can be no dedication of a way by an individual to the 
 public for a limited time, whether certain or uncertain, and if dedi- 
 cated at all by an individual, it must be dedicated in perpetuity, (g) 
 
 Public roads are frequently created by Acts of Parliament, but 
 in these cases the road will only continue to be a public road so long 
 as the Act continues in force, and the performance of statute duty 
 upon the road during the continuance of the Act is no adoption of 
 the road so as to render the parish liable to repair it after the Act 
 has expired. A road was made by the trustees appointed under the 
 45 Geo. 3, c, 7, which was to continue in force for twenty-one years, 
 and from thence to the end of the then next session of Parliament, 
 and which required the inhabitants to do statute duty upon the road : 
 it was held that when the Act ceased to be in operation, the road 
 made pursuant to its provisions was no longer a public road, and as, 
 
 (cl) Lawrence v. Hitch, 37 L. ,T. Q. B. years by the public, and then the original 
 
 209. road was reopened to the public and used by 
 
 (e) R. v. Chorley, 12 Q. B. 515. them ; and Erie, C. J., and Byles, J., held 
 
 (/) Duncan v. Louch, 6 Q. B. 904. that these facts afforded no reasonable evi- 
 
 (y) R. v. Lordsmere, post, p. 772. deuce of a dedication of the substituted road 
 
 Daw.v, v. Hawkins, 8 C. B. (N. S.) 848 ; in to the public, the public user thereof being 
 
 this case an ancient way over a common was, referable to the right of the public to deviate 
 
 without authority or interference from the on the adjoining land in consequence of the 
 
 owner of the soil, diverted by an adjoining old road being stopped up. Williams, J., 
 
 proprietor, who substituted a new road for dissentiente. 
 
 it, which was used for more than twenty
 
 772 Dedication. [book ii. 
 
 during the time the' Act continued in force, the several parishes 
 through which the road passed were compelled by the Act to do 
 statute duty, there was no adoption of the road by those parishes 
 during that period. As soon as the Act expired or was repealed, the 
 several parishes, through which the road passed, could only be liable 
 to repair by reason of the common-law obligation. Now a road 
 becomes public by reason of a dedication of the right of passage to 
 the public by the owner of the soil, and of an acceptance of the right 
 by the public or the parish ; and in this case the facts did not furnish 
 any ground for presuming an adoption by the public, (h) 
 
 Upon an indictment for non-repair of a common Queen's highway, 
 it appeared that the road was made under a turnpike Act, which 
 was to continue in force for twenty-one years, and had been kept in 
 force by subsequent Acts till the finding of the indictment. It was 
 opened in 1850 for general traffic, a stage-coach had run along it, and 
 it had been used by carts and carriages. It was proposed to prove 
 in defence that the trustees had never put the road in good repair, 
 and that it had never been properly fenced or finished so as to fulfil 
 the requisitions of the Act ; but as it had been so far completed as to 
 have been used along the whole line for several years, Patteson, J., 
 rejected the evidence as tending to prove what was immaterial. 
 It was contended, after a verdict of guilty, that the township was 
 not liable to repair a temporary turnpike road ; that the way was 
 improperly described, as it was not described as a way for a limited 
 time ; and that the evidence was improperly rejected, as unless the road 
 had been completed by the 'trustees, the township had not become 
 liable to repair. But it was held that this was a common Queen's 
 highway at the time the bill was found, and that the township was 
 liable to repair it, at least as long as the Act continued in force, and 
 that there was no misdescription, and that after the road had been 
 opened and used for so many years, it was much too late to raise any 
 objection to its not having been fully completed, (i) Where a road 
 was made by turnpike trustees under a temporary Act which expired 
 in 1848, but the whole line authorized by the Act had never been 
 completed : for twenty-eight years it had been used by the public, 
 and rates had been made, during that time, at the parish meetings, 
 for the repair of the road, and the road had on many occasions been 
 repaired, and the surveyor had been paid for such repairs, but during 
 such time portions of the road were frequently not kept in sufficient 
 repair, and in one part there was a hole a yard deep made by persons 
 employed to repair the road in order to obtain materials, but vehicles 
 could pass between that and the hedge, and the parish had not at- 
 tempted to fill it up. Two or three bars or chains were put up shortly 
 after the making of the road, and toll demanded and sometimes 
 refused; but the chain and bars had been removed for more than 
 twelve years. On an appeal against a conviction in 1857 for obstruct- 
 ing this road, the sessions confirmed the conviction, subject to the 
 opinion of the Court of Queen's Bench, whether there was evidence 
 that the said road ever became a highway compulsorily repairable 
 
 (h) R. v. Mellor, 1 B. & Ad. 32. See the ivfra. R. v. Winter, 8 B. & C. 785 ; 3 M. 
 remarks of Patteson, J., in R. v. Lordsmere, & R. 433. 
 
 (i) R. v. Lordsmere, 15 Q. B. 689.
 
 chap. xxxn. § ii.] Of Nuisances to Highways. 773 
 
 by the parish ; and that Court held that there was such evidence, 
 and that, though the fact that the road was originally made under 
 the turnpike Act, might explain away such evidence in fact, it did 
 not conclusively rebut it in law. (/) 
 
 Where an ancient highway is turned into a turnpike road the 
 imposition of tolls does not prevent its continuing to be repairable 
 by the parish, (k) 
 
 Where by an Act of Parliament trustees are authorized to make 
 a road from one point to another, the making of the entire road is 
 not a condition precedent to any part becoming a highway repairable 
 by the public. (I) 
 
 Where a highway was proved to have existed for forty years 
 before 1827, and then to have been interrupted for more than twenty 
 years, it was contended that such an interruption acquiesced in by 
 the public was sufficient in law to exclude such right of way on 
 behalf of the public ; but it was held that the fact that a person 
 had for more than twenty years prevented the public from doing 
 what they had done before for forty years, did not destroy the right. 
 An interruption for such a period was evidence that no right ever 
 existed, but it might be met by counter evidence, (m) 
 
 By the common law an ancient highway cannot be changed with- 
 out the King's licence first obtained upon a writ of ad quod damnum, 
 and an inquisition thereon found that such a change will not be 
 prejudicial to the public, (n) 
 
 It is certain that a highway may be changed by the act of God ; and 
 therefore it has been holden that if a water, which has been an ancient 
 highway, by degrees change its course, and go over different ground 
 from that whereon it used to run, yet the highway continues in the 
 new channel as it previously was in the old. (o) But it may well be 
 doubted whether this position can be applied to roads, and it seems 
 clearly inapplicable to a case where a public road is washed away by 
 the sea. An indictment alleged that a certain part of a public high- 
 way, which had existed from time immemorial, was out of repair, and 
 that the defendant was liable to repair it by reason of the tenure of 
 his lands ; and it was found by a special verdict that the sea had from 
 time to time made encroachments upon the said lands, and carried 
 away the soil and earth of the same, so that part of the space occupied 
 by the said lands was occupied by the sea ; and that there was an 
 ancient highway as stated in the indictment, part whereof passed over 
 the said lands ; and that the encroachments of the sea had from time 
 to time extended unto and over the said ancient highway, so that a 
 portion of the said highway was covered by the sea and impassable ; 
 wherefore those, whose estate the defendant had, had, fiom time to 
 time, gradually removed the same highway, and appropriated other 
 parts of the said land for the site thereof, so that the public had had 
 the uninterrupted use of a road for the purposes of the said highway ; 
 
 (j) R. v. Thomas, 7 E. & B. 399. stopped by order of justices, or in some other 
 
 (k) R. v. Lordsmere, supra. legal way. 
 
 (I) R. v. French, 4 Q. B. D. 507. (n) 1 Hawk. P. C. c. 76, s. 3. Burn's 
 
 (m) Young v. Cuthbertson, 1 Macq. Sco. Just. tit. Highways, s. 11. The writ of ad 
 
 Ap. C- 455. Perhaps in case of non-user by quod damnum seems virtually abolished, 
 
 the public for a great length of time, it might See Woolrych's Highway Act, 112. 
 be presumed that a highway has been legally (o) 1 Hawk. P. ft c. 76, s. 4.
 
 774 Changing a Highway. [book ii. 
 
 and that the same road had always been repaired by the defendant 
 and those whose estate he had in lien of so much of the ancient hkdi- 
 way ; and that the sea had made an encroachment in the month of 
 March last, upon the part of the highway mentioned in the indict- 
 ment, and carried away large quantities of the soil thereof, and that 
 the highway was thereby rendered impassable. And it was held by 
 the Court of Queen's Bench, that the defendant was entitled to be 
 acquitted, (p) So where an indictment described a road as leading 
 from a street to the German Ocean, and alleged that part of it was in 
 great decay for want of due reparation, and it appeared that the road 
 had formerly sloped gradually down towards the sea, but had been 
 washed away from time to time by the encroachments of the sea, and 
 at the time when the indictment was preferred the termination of the 
 road had become a perpendicular cliff twenty feet high, which rendered 
 it impossible for any cart or carriage to get down to the beach, but the 
 surface of the existing road was in good repair up to where the same 
 had been swept away by the destruction of the cliff ; it was held that 
 there did not exist any legal obligation upon the parish to provide an 
 available carriage-road down to the beach. The indictment alleged 
 that there was a highway, and that it was out of repair ; but it was 
 found that that part of the road alleged to be out of repair had been 
 washed away by the sea, so that the subject of repair was not in 
 existence ; and in order to create an obligation to repair, there must 
 be something in existence capable of being repaired, (q) 
 
 So where upon an indictment for non-repair of a highway it ap- 
 peared that the highway alleged to be out of repair had passed along 
 the top of a quay, which was a thick wall of solid masonry of con- 
 siderable height, and the surface of it was composed of large pieces of 
 granite mortared together, and had been used by persons going on 
 foot and on horseback and with small carts used by fishermen, and 
 two or three years before the sea had washed away a considerable 
 portion of the quay leaving a gap, which completely broke off the 
 communication. Maule, J., held that the defendants were entitled to 
 be acquitted. Whatever might be the duty of the parish as to the 
 road whilst the quay existed, they were not defaulters on this evi- 
 dence. The interruption of the passage was not from the want of 
 repair, but from the sea having washed away the wall, and there was 
 no longer anything for them to repair, (r) 
 
 A public highway ran along the slope of a hill, beneath which was 
 a valley, the slope being at right angles to the valley, and very precipi- 
 tous. A landslip of considerable magnitude occurred on the slope, 
 and about 252 yards of the highway were carried off into the valley 
 below, and, its place being filled up with stones and other debris, no 
 trace of the old metalled road remained, but the line of it was known 
 and admitted. An engineer, who had inspected the locus in quo, 
 reported that it was practicable to form a permanent and passable 
 road along the whole track, and of a similar character, at a moderate 
 outlay. The Court had power to draw inferences of fact, — Held, that 
 
 (p) R. v. Bamber, 5 Q. B. 279. and R. v. Commrs. of Fobbing, 11 Ap. Cas. 
 
 (q) R. v. Hornsea, Dears. C. C. 291. See 449. 
 R. v. Leigh, 10 A. & E. 398, as to sea walls (r) R. v. Paul, 2 M. & Rob. 307. 
 
 washed away by an extraordinary tempest.
 
 chap. xxxn. § II.] Of Nuisances to Highways. 775 
 
 there was no such total destruction of the road as would relieve the 
 parish from liability to repair, (s) 
 
 By the 5 & 6 Will. 4, c. 50, s. 80, the surveyor shall make every 
 public cartway, leading to any market town, twenty feet wide at the 
 least, and every public horseway eight feet wide at the least, and 
 every public footway by the side of any carriage-way three feet at 
 the least, if the ground between the fences inclosing the same will 
 admit thereof, (t) And by sec. 82, where it shall appear, upon the 
 view of two justices, that any highway is not of sufficient breadth, 
 and may be widened and enlarged, the said justices shall order such 
 highway to be widened and enlarged in such manner as they shall 
 think fit, so that the said highway, when enlarged and diverted, shall 
 not exceed thirty feet in breadth ; and that neither of the said powers 
 do extend to pull down any house or building, or to take away the 
 ground of any garden, lawn, yard, court, park, paddock, planted walk, 
 plantation, or avenue to any house or any enclosed ground set apart 
 for building-ground, or as a nursery for trees. The statute then pro- 
 ceeds to empower the surveyor to agree with the owners of the ground 
 wanted for such purposes for their recompense ; and provides, that if 
 they cannot agree, the same may be assessed by a jury at the quarter 
 sessions ; and, after directing the proceedings in such event, it enacts 
 that, 'upon payment or tender of the money so to be awarded and 
 assessed, to the person, body politic or corporate, entitled to receive the 
 same, or leaving it in the hands of the clerk of the peace of such limit, 
 in case such person, &c, cannot be found, or shall refuse to accept the 
 same, for the use of the owner of or others interested in the said 
 ground, the interest of the said person, &c, in the said ground shall 
 be forever divested out of them ; and the said ground, after such 
 agreement or verdict as aforesaid, shall be esteemed and taken to 
 be a public highway, to all intents and purposes whatsoever.' (u) 
 
 Sec. 84. ' When the inhabitants in (v) vestry assembled (w) shall 
 deem it expedient that any highway should be stopped up, diverted 
 or turned, either entirely or reserving a bridleway or footway along 
 the whole or any part or parts thereof, (x) the chairman of such meet- 
 ing shall, by an order in writing, direct the surveyor to apply to two 
 justices to view the same, (y) and shall authorize him to pay all the ex- 
 
 (s) R. v. Hornsea, Dears. C. C. 291, R. v. Balme, Cowp. 648. Sec. 83 provides 
 
 distinguished. R. v. Greenhow, Inhab. of, for the costs of the proceedings at the ses- 
 
 1 Q. B. D. 703, 45 L. J. M. C. 141. sions. 
 
 (t) 1 Hawk. P. C. c. 76, s. 16. The (v) Wright v. Frant (Overseers of), 32 
 
 surveyor has no authority to pare away the L. J. M. C. 204. 
 
 bank of a fence by the side of a road under (w) R. v. Powell, 42 L. J. M. C. 129, 
 this clause. Alston v. Scales, 9 Bing. 3. where it was held that the notice convening 
 See Lowen v. Kaye, 4 B. & C. 3 ; 6 P. & R. the meeting was sufficient. 
 20. As to widening highways under the (.r) This provision seems to have been 
 Highway Acts, 1862, 1864, see 25 & 26 Vict. introduced to get rid of the doubts enter- 
 c. 61, s. 44 ; 27 & 28 Vict. c. 101, ss. 21, tained in R. v. 'Winter, 8 B. & C. 785, as to 
 47, 48, noticed post. whether justices could divert a road for car- 
 fit) Sec. 82. It was decided that a riages and continue it for foot passengers, 
 similar power thus given to two justices by An order for stopping up half the breadth of 
 the 13 Geo. 3, c. 78, to order any highway a highway under the 55 Geo. 3, c. 68, was 
 to be widened extended to roads repairable bad, although the other half was not within 
 raiione tenurce ; and that upon disobedience the division of the justices w T ho made the 
 to such order the party might either be pro- order. R. v. Milverton, 5 A. & E. 841 ; 1 
 ceeded against summarily under the statute, N. & P. 179. 
 
 or by an indictment as for an offence at (y) See post. As to stopping up foot- 
 common law. 1 Hawk. P. C. c. 76, s. 57 ; paths across lands required for rifle vol-
 
 776 Stopping up Highways. [book ii. 
 
 penses attending such view, and the stopping up, diverting or turning 
 such highway, either entirely or subject to such reservation as afore- 
 said, out of the money received by him for the purposes of this Act ; 
 provided nevertheless, that if any other party shall be desirous of 
 stopping up, diverting, or turning any highway as aforesaid, he shall, (z) 
 by a notice in writing, require the surveyor to give notice to the 
 churchwardens to assemble the inhabitants in vestry, and to submit 
 to them the wish of such person ; and if such inhabitants shall agree 
 to the proposal, the said surveyor shall apply to the justices as last 
 aforesaid for the purposes aforesaid; and in such case the expenses 
 aforesaid shall be paid to such surveyor by the said party, or be re- 
 coverable in the same manner as any forfeiture is recoverable under 
 this Act; and the said surveyor is hereby required to make such 
 application as aforesaid.' 
 
 Sec. 85. (a) ' When it shall appear upon such view (b) of such two 
 justices of the peace, made at the request of the said surveyor as 
 aforesaid, that any public highway may be diverted and turned, either 
 entirely or subject as aforesaid, so as to make the same nearer or more 
 commodious to the public, and the owner of the lands or grounds 
 through which such new highway so proposed to be made shall con- 
 sent thereto by writing under his hand, (c) or if it shall appear upon 
 such view that any public highway is unnecessary, the said justices 
 shall direct the surveyor to affix a notice in the form or to the effect 
 of Schedule (No. 19) to this Act annexed in legible characters, at the 
 place and by the side of each end (d) of the said highway from whence 
 the same is proposed to be turned, diverted, or stopped up, either 
 entirely or subject as aforesaid, and also to insert the same notice in 
 one newspaper published or generally circulated in the county where 
 the highway so proposed to be diverted and turned, or stopped up, 
 
 unteer and artillery volunteer practice, see be no objection that previously to their view 
 
 23 & 24 Vict. c. 140, s. 17 ; 25 & 26 Vict, the road had been stopped up de facto by the 
 
 c. 41, s. 4. owner of the adjoining land without author- 
 
 (z) This seems virtually to do away with ity, as they might properly state in their 
 
 the writ of ad quod damnum, as the clause order that they had viewed the old road if 
 
 is imperative on the party desiring to stop they had viewed the ground over which the 
 
 up a highway to proceed under this section. right of way was. R. v. Justices of Cam- 
 
 C. S. G. bridgeshire, 4 A. & E„ 111 ; 5 N. & M. 440. 
 
 (a) See 27 & 28 Vict. c. 101, s. 21, post. Where a person, over whose land a highway 
 
 (b) Actual inspection being the founda- led, opened another road over his own land, 
 tion of the jurisdiction of the justices, the between the same points, which the public 
 order must distinctly state that the justices used, and they ceased using the former road, 
 acted upon view. See R. v. Justices of it was held that nine years afterwards an 
 Cambridgeshire, 4 A. & E. Ill, 5 N. & M. order for stopping up the old road as un- 
 440 ; R. v. Milverton, 5 A. & E. 841, 1 N. necessary might be made under the 55 Geo. 
 & P. 179 ; R. v. Marquis of Downshire, 4 A. 3, c. 68, and that it was not necessary to 
 & E. 698, 6 N. & M. 92. An order, ' we proceed as in case of diverting a highway 
 having upon view found, or it appearing under the 13 Geo. 3, c. 78, s. 16, ibid, 
 unto us,' would be bad. R. v. Wallace, 4 (c) There must be the consent of the 
 Q. B. D. 641 ; R. v. Justices of Worcester- person who is the owner of the estate at the 
 shire, 8 B. & C. 244 ; and see R. v. Justices time when the order is made. R. v. Kirk, 
 of Kent, 10 B. & C. 477 ; R. v. Jones, 12 A. 1 B. & C. 21. And an assent to the turning 
 & E. 684 ; R. v. Newmarket R. Co., 15 Q. B. of a road, given under the hand and seal of 
 702, that the order must have shown, on the the solicitor and agent of the party through 
 face of it, that the justices had viewed the whose ground the new road is to pass, is not 
 new line of road. The view by justices under sufficient. R. v. Justices of Kent, 1 B. & C. 
 the 55 Geo. 3, c. 68, s. 2, was not sufficient, 722. 
 
 unless it was a joint view, and unless the (d) See R. v. Surrey (Justices of), 39 L. 
 
 finding that the way was unnecessary was J. M. C. 145, where there were three roads- 
 the result of that view : but it was held to forming one system.
 
 chap, xxxii. § ii.] Of Nuisances to Highways. 777 
 
 either entirely or subject as aforesaid (as the case may be) shall lie, 
 for four successive weeks next after the said justices have viewed 
 such public highway, and to affix a like notice on the door of the 
 church of every parish in which such highway so proposed to be 
 diverted, turned, or stopped up, either entirely or subject as afore- 
 said, or any part thereof, shall lie, on four successive Sundays next 
 after the making such view; and the said several notices having been 
 so published, and proof thereof having been given to the satisfaction 
 of the said justices, and a plan having been delivered to them at the 
 same time particularly describing the old and the proposed new high- 
 way, by metes, bounds, and admeasurement thereof, which plan 
 shall be verified by some competent surveyor, the said justices shall 
 proceed to certify (e) under their hands the fact of their having 
 viewed the said highway as aforesaid, and that the proposed new(/) 
 highway is nearer or (g) more commodious to the public ; and if 
 nearer, the said certificate shall state the number of yards or feet it 
 is nearer, or if more commodious, the reasons why it is so; and if the 
 highway is proposed to be stopped up as unnecessary, either entirely 
 or subject as aforesaid, then the certificate shall state the reason why 
 it is unnecessary ; and the said certificate of the said justices, together 
 with the proof and plan so laid before them as aforesaid, shall, as 
 soon as conveniently may be after the making of the said certificate, 
 be lodged with the clerk of the peace for the county in which the 
 said highway is situated, and shall (at the quarter sessions which 
 shall be holden for the limit within which the highway so diverted 
 and turned, or stopped up, either entirely or subject as aforesaid, 
 shall lie, next after the expiration of four weeks from the day of the 
 said certificate of the said justices having been lodged with the clerk 
 of the peace as aforesaid), (h) be read by the said clerk of the peace 
 in open court; and the said certificate, together with the proof and 
 plan as aforesaid, as well as the consent in writing of the owner of 
 the land through which the new highway is proposed to be made, 
 shall be enrolled by the clerk of the peace amongst the records of the 
 said court of quarter sessions; provided always, that any person 
 whatever shall be at liberty, at any time previous to the said quarter 
 sessions, to inspect the said certificate and plan so as aforesaid lodged 
 with the said clerk of the peace, and to have a copy thereof, on 
 payment to the clerk of the peace, at the rate of sixpence per folio, 
 and a reasonable compensation for the copy of the plan.' 
 
 Sec. 86. 'In any case where it is proposed to stop up or divert 
 more than one highway, which highways shall be deemed to be so 
 connected together as that they cannot be separately stopped or 
 diverted without interfering one with the other, it shall be lawful to 
 include such different highways in one order or certificate.' (i) 
 
 (c) As to the requisites of the certificate, (h) See R. v. Justices of .Kent, 1 B. & C. 
 
 see R. v. Hervey, 44 L. J. M. C. 1 ; R. v. 622, as to the mode of computing the time 
 
 Maule, 41 L. J. M. C. 47. from the giving the notices under the 55 
 
 (/) See R. v. Phillips, 35 L. J. M. C. Geo. 3, c. 68, s. 2. 
 
 217, post, p. 779. (i) Before this Act there must have been 
 
 (g) A certificate is not bad by reason of a separate order for each road. R. ;•. Mil- 
 its not stating that the new highway would verton, 5 A. & E. 841 ; 1 N. & P. 179. So 
 be nearer as well as more commodious. R. a road could not be diverted and stopped up 
 v. Phillips, 35 L. J. M. C. 217. by the same order. R. v. Justices of Middle-
 
 778 Stopping up Highways. [book II. 
 
 Sec. 87. 'In the event of any appeal being brought against the 
 whole or any part or parts of any order or certificate for diverting 
 more highways than one, it shall be lawful for the Court to decide 
 upon the propriety of confirming the whole or any part or parts of 
 such order or certificate, without prejudice to the remaining part or 
 parts thereof.' 
 
 Sec. 88. 'When any such certificate shall have been so given as 
 aforesaid, it shall and may be lawful for any person who may think 
 that he would be injured or aggrieved (j) if any such highway should 
 be ordered to be diverted and turned or stopped up, either entirely or 
 subject as aforesaid, and such new highway set out and appropriated 
 in lieu thereof as aforesaid, or if any unnecessary highway should be 
 ordered to be stopped up as aforesaid, to make his complaint thereof 
 by appeal to the justices of the peace at the said quarter sessions, 
 upon giving to the surveyor ten days' (Jc) notice in writing of such 
 appeal, together with a statement in writing of the grounds of such 
 appeal, who is hereby required, within forty-eight hours after the 
 receipt of such notice, to deliver a copy of the same to the party by 
 whom he was required to apply to the justices to view the said high- 
 way ; provided that in all cases where the said surveyor shall have 
 been directed by the inhabitants in vestry assembled to apply to such 
 justices as aforesaid, then the said surveyor shall not be required to 
 deliver a copy of such notice to any party ; provided also, that it shall 
 not be lawful for the appellant to be heard in support of such appeal 
 unless such notice and statement shall have been so given as afore- 
 said, nor on the hearing of such appeal to go into or give evidence of 
 any other grounds of appeal than those set forth in such statement as 
 aforesaid.' 
 
 Sec. 89. ' In case of such appeal the justices at the said quarter 
 sessions shall, for the purpose of determining whether the proposed 
 new highway is nearer or more commodious to the public, or whether 
 the public highway so intended to be stopped up, either entirely or 
 subject as aforesaid, is unnecessary, or whether the said party appeal- 
 ing would be injured or aggrieved, impannel a jury of twelve disin- 
 terested men out of the persons returned to serve as jurymen at 
 such quarter sessions : and if, after hearing the evidence produced 
 before them, the said jury shall return a verdict that the proposed 
 new highway is nearer or more commodious to the public, or that the 
 public highway so intended to be stopped up, either entirely or subject 
 as aforesaid, is unnecessary, or that the party appealing would not be 
 injured or aggrieved, then the said court of quarter sessions shall 
 dismiss such appeal, and make the order herein mentioned for divert- 
 ing and turning and stopping up such highway either entirely or 
 subject as aforesaid, or for diverting, turning, and stopping up of such 
 old highway, and purchasing the ground and soil for such new high- 
 way, or for stopping up such unnecessary highway either entirely or 
 
 sex, 5 A. & E. 626 ; 1 N. & P. 92. R. v. Justices of the "West Riding of Yorkshire, 4 
 
 Justices of Kent, 10 B. & C. 477. B. & Ad. 685 ; 1 N. & M. 426. R. v. Adey, 
 
 (') R. v. Justices of Essex, 5B.&C. 431. 4 N. & M. 365. 
 R. v. Justices of West Riding of Yorkshire, (/.) As to fourteen days' notice being now 
 
 7 B. & C. 678. R. v. Blackawton, 10 B. & necessary, see R. v. Maule, 41 L. J. M. C. 
 
 C. 792. R. v. Bond, 6 A. & E. 905. R. v. 47 ; see'R. v. Lancashire, 8 E. k B. 563.
 
 chap. xxxn. § ii.] Of Nuisances to Hbjlamys. 
 
 779 
 
 subject as aforesaid ; but if the said jury shall return a verdict that 
 the proposed new highway is not nearer or not more commodious to 
 the public (I) or that the highway so intended to be stopped up, 
 either entirely or subject as aforesaid, is not unnecessary, or that the 
 party appealing would be injured or aggrieved, then the said court of 
 quarter sessions shall allow such appeal, and shall not make such order 
 as aforesaid.' (m) 
 
 Sec. 91. 'If no such appeal be made, (n) or being made shall be 
 dismissed as aforesaid, then the justices at the said quarter sessions 
 shall make an order (o) to divert and turn and to stop up such high- 
 way, either entirely or subject as aforesaid, or to divert, turn, and stop 
 up such old highway, and to purchase the ground and soil for such 
 new highway, or to stop up such unnecessary highway, either entirely 
 or subject as aforesaid, by such ways and means, and subject to such 
 exceptions and conditions in all respects as in this Act is mentioned 
 in regard to highways to be widened, and the proceedings thereupon 
 shall be binding and conclusive on all persons whomsoever, and the 
 new highway so to be appropriated and set out shall be and for ever 
 after continue a public highway to all intents and purposes whatso- 
 ever, but no old highway (except in the case of stopping up such 
 useless highway as herein is mentioned) shall be stopped until such 
 new highway shall be completed and put into good condition and 
 
 (l) By a certificate of two justices, ob- 
 tained for the purpose of diverting and 
 stopping up a highway, &c, and made under 
 the 85th sect, of the 5 & 6 Will. 4, c. 50, it 
 was stated that the proposed new highway 
 ' will be more commodious to the public, by 
 reason, ' &c, and that the old highway called, 
 &•., 'will if and so soon as such diversion 
 or substitution be effected, become and be 
 wholly unnecessary and useless, by reason,' 
 &c. The certificate also showed that the 
 way to be substituted for the old one was 
 not an entirely new way, but would consist 
 of two existing ways, which were to be 
 widened and enlarged, so as to make them 
 more commodious and convenient. Held, 
 overruling R. v. Shiles, 1 Q. B. 919, that 
 the certificate was not bad by reason of its 
 not stating that the new highway would be 
 nearer as well as more commodious. Held, 
 also, that it was not bad by reason of its not 
 stating that the new highway was more com- 
 modious, and that it was sufficient to state 
 that it would be, &c. Held, also, overruling 
 Welch v. Xash, 8 East, 394, that it was 
 not necessary that the highway to be sub- 
 stituted should be entirely new. R. v. Phil- 
 lips, 35 L. J. M. C. 217. 
 
 (ra) Sec. 90. ' The Court of Quarter Ses- 
 sions has power to award costs of the appeal.' 
 See R. v. W. R. of Yorkshire, 2 B. & S. 
 811. 
 
 (n) In R. v. Justices of Worcestershire, 
 2 B. & A. 228, it was held that the sessions 
 had a right to inquire whether the order, 
 though there was no appeal, was made by 
 proper authority before they confirmed it. 
 R. v. Worcestershire, 3 E. & B. 477. R. 
 v. Hervey, 44 L. J. M. C. 1. 
 
 (o An order for stopping up a footway 
 under the 55 Geo. 3, c. 68, s. 2, must have 
 distinctly stated in what parish or place the 
 footway was situate. R. v. Kenyon, 6 B. 
 & C. 640. Where a road was diverted, the 
 order must have shown on the face of it that 
 the public had the same permanent right 
 over the new line as they had along the old 
 line : where, therefore, the new line passed 
 partly over a road described in the order as 
 a new turnpike road, it was held that as it 
 might have been made a turnpike road only 
 for a limited period, and if so. would subsist 
 as a public road for that period only (see 
 ante, p. 771), the order was bad ; and if a 
 permanent right was given to the public 
 under the Turnpike Act, that ought to have 
 been shown by the order. R. v. Winter, 8 
 B. & C. 785. An order referring to a plan 
 annexed to the order for the description of 
 the road to be diverted was good ; but a 
 notice published pursuant to the 55 G-eo. 3, 
 c. 68, s. 2, merely describing the road by 
 termini, and the part to be stopped up as so 
 many yards of such road, was held bad. R. 
 v. Horner, 2 B. & Ad. 150. If an order for 
 stopping a highway were properly made and 
 enrolled, under 55 Geo. 3, c. 68, it was un- 
 necessary to render it effectual that an aetual 
 stoppage of the road should have taken place. 
 R. v. Milverton, 5 A. & E. 841 ; 1 X. & P. 
 179. A footway might be ordered to be 
 stopped without being ordered to be sold. 
 R. v. Glover, 1 B. & Ad. 482. It seems to 
 have been thought that the justices had only 
 jurisdiction over the roads within the divi- 
 sion of the county for which they acted, 
 under the 55 Geo. 3, c. 68. R. v. Milverton, 
 5 A. & E. 841 ; 1 N. & P. 179.
 
 780 Inclosure Acts. [book ii. 
 
 repair, and so certified by two justices of the peace upon view there- 
 of, which certificate shall be returned to the clerk of the peace, and 
 by him enrolled amongst the records of the court of quarter sessions 
 next after such order as aforesaid shall have been made pursuant to 
 the directions hereinbefore contained.' (oo) 
 
 Sec. 92. ' In every case in which a highway shall have been turned 
 or diverted under the provisions of this Act, the parish or other party 
 which was liable to the repair of the old highway shall be liable to 
 the repair of the new highway, without any reference whatever to its 
 parochial locality.' 
 
 Sec. 93. 'The powers and provisions in this Act contained with 
 respect to the widening and enlarging, diverting, turning, or stopping 
 up any highway shall be applicable to all highways which any 
 person, bodies politic or corporate, is or are bound to repair by reason 
 of any grant, tenure, limitation, or appointment of any charitable 
 gift, or otherwise howsoever ; and that when such last-mentioned 
 highways are so widened or enlarged, turned or diverted, the same 
 shall and may, by an order of the justices at a special sessions for the 
 highways, be placed under the control and care of the surveyor of the 
 parish in which such highways may be situate, and shall be from 
 time to time thereafter repaired and kept in repair by the said parish : 
 provided also, that the said highways so widened, enlarged, diverted, 
 or turned, shall be viewed by two justices of the peace, who shall 
 make a report thereof to the justices at a special sessions for the 
 highways, and such last-mentioned justices shall, by an order under 
 their hands, fix the proportionate sum which shall be annually paid, 
 or shall fix a certain sum to be paid, by such person, bodies politic 
 or corporate, his or their heirs, successors, or assigns, to the said sur- 
 veyors of the parish, in lieu of thereafter repairing the said part of the 
 said old highway, and the order of the said last-mentioned justices 
 shall be and continue binding on all such persons, bodies politic or 
 corporate, their heirs, successors, or assigns, and in default of payment 
 thereof the said surveyor shall proceed for the recovery of the same in 
 the manner as any penalties and forfeitures are recoverable under 
 this Act.' 
 
 It frequently happened that the boundaries of parishes passed 
 through the middle of a highway, one side of the highway being situ- 
 ated in one parish, and the other side of the way being situated in 
 another parish, whereby great inconveniences arose to the parishes in 
 settling the time and manner of repairing such highways ; and it was 
 therefore provided by the 5 & 6 Will. 4, c. 50, s. 58, that the justices, 
 at a special sessions for the highways, upon application by the sur- 
 veyor, may divide the whole of any such common highway, by a 
 transverse line crossing it, into two equal parts, or into two such un- 
 equal parts and proportions as in consideration of the soil, waters, 
 floods, the inequality of such highway, or any other circumstances, 
 they think just, (p) 
 
 Besides the methods which have been already mentioned, roads are 
 sometimes changed or stopped, or new ones created by turnpike Acts, 
 
 (oo) The consent of the Parish Council is division ; and afterwards enacts as to the 
 
 also now necessary, 56 & 57 Vict. c. 73, s. 13. liabilities of the parishes respectively to 
 
 (p) The Act sets forth particularly the repair their portions after such division ; see 
 
 proceedings to be had for the purpose of such ]wst, p. 797.
 
 chap, xxxii. § ii.] Of Nuisances to Highways. 781 
 
 inclosure Acts, or other Acts of Parliament, containing specific enact- 
 ments for such purposes ; but such new roads may or may not be 
 public, according to the provisions of the particular Acts, (q) 
 
 The commissioners appointed under local inclosure Acts have power 
 to stop up and divert public ways over lands to be inclosed by the 41 
 Geo. 3, c. 109, s. 8; but that section contains a proviso, that where 
 such commissioners have power, under any inclosure Act, to stop up 
 any old road leading through old inclosures, they shall not exercise 
 that power without the concurrence of two justices ; it follows as a 
 necessary consequence from the proviso, taken with the rest of the 
 clause, that if no such power is given to commissioners by the par- 
 ticular inclosure Act, it cannot exist at all. (r) 
 
 Under the 41 Geo. 3, c. 109, s. 8, the commissioners are authorised 
 to stop up or divert footways as well as carriage-roads ; and the pro- 
 viso at the end of the section is not confined to carriage roads, but 
 extends to every species of way, and, therefore, where the commis- 
 sioners were empowered by a local inclosure Act to stop up all ways 
 passing over the lands to be inclosed, as well as ways passing through 
 old inclosures in the parish, it was held that in order effectually to 
 stop up a public footway passing partly over the lands to be inclosed 
 and partly over an old inclosure, it was necessary for them to have 
 the concurrence and order of two justices, and no such order or con- 
 currence having been obtained, it was held that a footway which the 
 commissioners had ordered to be stopped up had not been effectually 
 stopped, but continued a public footway, (s) 
 
 Where an inclosure Act provided that all ways not set out by the 
 commissioners should be extinguished, and also authorised the stop- 
 ping up of roads through old inclosures, provided that no roads should 
 be stopped up without the order of two justices, and a road through 
 old inclosures opened upon the waste, and at such opening joined 
 another road, which formed a continuation of the first road, and ran 
 entirely over waste land; and no valid order was obtained for stop- 
 ping up the road, which ran through the old inclosures, and the road 
 over the waste land was not set out or continued by the commis- 
 sioners ; it was held that this omission to set out or continue the 
 road, did not extinguish the road through the old inclosures, and 
 create a consequent stoppage of the road over the waste, but that, on 
 the contrary, the road through the old inclosures remaining open for 
 want of an order of justices, as a consequence the road over the waste 
 remained open also, (t) 
 
 Upon an indictment against the township of Hatfield for non-repair 
 of a highway, it appeared that the road was an ancient highway which 
 passed over part of a common then within Hatfield, and that by an 
 inclosure Act (51 Geo. 3, c. 30) for inclosing Hatfield and other town- 
 ships, it was directed that the allotments in respect of certain mes- 
 suages should be part of the townships within which the messuages 
 were situate, and the commissioners were to make such orders as they 
 should think proper concerning all public roads, ' in what township 
 
 (q) Ante, p. 771. (t) R. v. Marquis of Downshire, 4 A. & 
 
 (?•) Thackrah v. Seymour, 3 Tyrw. 87. E. 698 ; 6 N. & M. 92. 
 
 (s) Logan v. Barton, 5 B. & C. 513. See 
 Harber v. Rand, 9 Price, 58.
 
 782 Inclosure Acts. [book ii. 
 
 and place the same are respectively situate/ and by whom they ought 
 to be repaired. The commissioners by their award directed there 
 should be the road in question, and new allotments on each side of it 
 were declared to be in other townships than Hatfield, but it was not 
 declared in what township the road was situate, or by whom it was 
 to be repaired. The prescriptive liability set forth in the indictment 
 was proved, but no certificate of justices was produced. It was held 
 that the road continued in Hatfield, but that Hatfield could not be 
 indicted for not repairing it, for want of a certificate of justices under 
 the 41 Geo. 3, c. 109, s. 9, declaring it to be fully completed, (u) 
 
 Upon an indictment for the non-repair of an ancient bridleway, it 
 appeared that there had been such an ancient way leading through old 
 inclosures into and across a common, which in parts was so narrow 
 that the bridleway might be described as passing along a broad lane ; 
 in other parts the common opened into a broad field, across which 
 persons using the way rode much as they pleased, so that in those 
 parts there was no definite track. Certain commissioners under an 
 Act, 54 Geo. 3, c. 160, which incorporated the 41 Geo. 3, c. 109, were 
 authorised ' to stop up, divert, turn, or in any other way alter ' any 
 public ways over the common or old inclosures with the concurrence 
 of two justices, and to set out new ways, which, when certified by 
 two justices to be complete, were to be repaired by the parish, and 
 they directed the common to be inclosed, and made no alteration in 
 the bridleway between the old inclosures ; but ordered that across the 
 common there should be set out a road thirty feet wide as a ' public 
 bridle-road' and as a 'private carriage-road' for certain persons, and 
 directed that the road should be repaired by those persons. The 
 road was accordingly set out, and its termini were the same as those 
 of the old bridleway, but it did not precisely follow the track over 
 which the public were anciently accustomed to ride. No certificate 
 or order of justices was proved : and it was held that the cases cited (v) 
 related to roads stopped or diverted by the commissioners or left 
 unnoticed in their award, and so impliedly stopped or diverted; but 
 in this case there had been no stopping or diverting of the old road ; 
 that the road set out was in effect the same road, and that the parish 
 was bound to do such repairs as were requisite to maintain the road 
 as a public bridle-road, (w) 
 
 Upon an indictment against a parish for the non-repair of a high- 
 way, it appeared that the road indicted was an ancient highway within 
 the parish. In 1840 the parish was inclosed under an Act which incor- 
 porated the General Inclosure Act, 41 Geo. 3, c. 109. The award was 
 made in June, 1840, and under the heading of ' public carriage-roads 
 and highways ' described the road indicted as ' one public carriage-road 
 and highway of the width of thirty feet.' The commissioners had, 
 before the award, made some alteration in the original road by 
 straightening and widening it; but the whole of the original road 
 was comprehended in the road set out in the award. It w T as admitted 
 by the defendants that the road indicted was a public road, and that 
 
 (n) R. v. Hatfield, 4 A. & E. 156, A. D. 1850. The Court pronounced no opinion on 
 
 1835. the effect of the order to repair the public 
 
 (v) Logan v. Burton, supra. bridleway further than that it did not relieve 
 
 (iv) R. v. Cricklade, 14 Q. B. 735, A. d. the parish from this indictment.
 
 chap, xxxii. § II.] Of Nuisances to Highways. 783 
 
 the parish had repaired it both before and after the award; hut no 
 steps had been taken by the commissioners for putting it into com- 
 plete repair, and there never was any declaration by any justices at 
 special sessions that the road had been fully formed, completed, and 
 repaired ; and no proceedings had been taken under the 5 & 6 Will. 4, 
 c. 50, s. 23. The road passed through allottable land on both sides, 
 except that a small portion on one side was an old inclosure. It was 
 objected that the proviso in sec. 9 of the 41 Geo. 3, c. 109, applied to 
 roads continued by an award as well as to roads made under it ; and 
 that as the road had not been declared by any justices at special 
 sessions to be formed, completed, and repaired, the parish were not 
 chargeable with the non-repair ; and, upon a case reserved, after a 
 verdict of guilty, the conviction was held wrong, (x) 
 
 Where an inclosure Act authorised commissioners to stop up any 
 old road leading between or over certain old inclosures, provided there 
 was an order of two justices, and the award in 1814 in pursuance of 
 the powers of the Act and ' by the concurrence and order of ' two jus- 
 tices stopped up a public footpath ; but no order of justices could be 
 found ; the footpath had been stopped up in pursuance of the award, 
 and the site of it obliterated, and a private carriage-way had been 
 made on the site of it, and persons prevented passing along it, and 
 one person taken before a magistrate for so doing ; and it was held 
 that there was sufficient prima facie evidence of the footway having 
 been properly stopped; for the award must be taken to have been 
 rightly made, unless there were some inference to the contrary from 
 subsequent enjoyment inconsistent with it. (y) 
 
 Where an inclosure Act incorporated the 41 Geo. 3, c. 109, and 
 authorised commissioners to stop up old roads, subject to the con- 
 currence of two justices, and the commons were allotted in 1819, 
 when a gate which had since been kept locked was put up across an 
 old highway, but the road had since been used by foot passengers 
 occasionally, and the award in 1830 set out new roads and directed 
 the old roads to be stopped up, and a certificate of two justices 
 that the new roads had been completed, under the 41 Geo. 3, c. 109, 
 s. 9, was proved ; but no order of justices for stopping the old road 
 was proved ; it was held that as there had been an inclosure of the 
 road for about twenty-eight years, it was sufficient to warrant the 
 Court, standing in the place of a jury, in presuming that everything 
 was rightly done, and that an order of justices had been obtained, and 
 that the user by foot passengers was not sufficient to rebut that 
 presumption, (z) 
 
 Upon an indictment against the township of Gate Fulford for 
 the non-repair of a highway, which it was alleged to be liable to 
 repair by virtue of an inclosure Act and award, it appeared that 
 Gate Fulford and Water Fulford were townships in the parish of 
 Fulford, and the inclosure Act directed commissioners to allot certain 
 lands in the manor of Fulford which (it was contended) were shown 
 
 (x) R. v. East Haglxmrne, Bel], C. C. (y) Manning v. E. Counties R. Co., 12 
 135, A. d. 1859. No reasons for the decision M. & W. 237, a. d. 1843. 
 were given. R. v. Hatfield was relied on for (z) Williams v. Eyton, 4 H. & N. 357, 
 the defence, and R. v. Cricklade for the affirming the decision of the Court of Ex- 
 prosecution, chequer in 2 H. & N. 771, a. d. 1858.
 
 784 Inclosure Acts. [book ii. 
 
 by the context to be all in the township of Gate Fulford and to set 
 out public and private roads in such lands, and the public roads so 
 set out were to be repaired by the township of Gate Fulford. The 
 award set out some roads, which it termed public highways and 
 roads ; some which it termed public carriage-roads, and others which 
 it termed private carriage-roads : it then set out the road in question, 
 which it termed simply a ' carriage-road,' and directed that it should 
 be repaired by ' the township of Fulford aforesaid,' without specifying 
 which township was meant. Another road also termed simply a 
 ' carriage-road ' appeared to be set out as a private road. It was held 
 that it sufficiently appeared that the road in question was made a 
 public road. The road in question ran through what was now under- 
 stood to be the township of Water Fulford , the township of Gate 
 Fulford had, however, on many occasions repaired the road, but had 
 also repaired roads in the township which were not public roads : it 
 was held that, assuming the commissioners had power only to award 
 as to lands in Gate Fulford, the Court would presume that the lands, 
 on which the road was made, lay at the time of the award in Gate 
 Fulford. (a) 
 
 A statute authorising the making a new course for a navigable 
 river, and turning the old part into a floating harbour, will not, with- 
 out words for the purpose, put an end to a public towing-path upon 
 that part ; but such towing-path will be liable to be used as such for 
 the purposes of the harbour ; and it will make no difference though the 
 river was a tide-river, and at low water admitted of no navigation. 
 By the 43 Geo. 3, power was given to carry part of the Bristol river 
 along a new course, and to convert the old part into a floating 
 harbour. There had immemorially been a towing-path on the north 
 side, and whether that continued a public towing-path along the side 
 of the floating harbour was the question. It was urged that it did 
 not, because this was a tide-river, not navigable at low water ; and the 
 floating harbour would make it usable at all times, and therefore in- 
 crease the burthen on the land. But, after taking time to consider, 
 the Court held, that as there were no words in the Act to annihilate 
 the right of the public, that right would continue notwithstanding the 
 improved state of the water within the bank ; that such water being 
 still applied to navigation purposes, for the use of the public, was 
 still in a state to derive the benefit from the path for which the path 
 had first been given to the public ; and judgment was given for the 
 King. (6) 
 
 In some instances a highway may, it seems, be in some measure 
 confined to a particular course by a private individual ; as, ' where it 
 lies over an open field, and the owner of the field incloses the field for 
 his own benefit, leaving a sufficient way.' (c) But in such case, where 
 the public had a right before such alteration to go upon the adjacent 
 ground when the way was out of repair, the owner of the field can 
 
 {a) R. v. Gate Fulford, D. & B. C. C. (b) R. v. Tippett, Mich. T. 1819, 3B.& 
 
 74. It was conceded that if any part of the A. 192, and MS. Bayley, J. The indictment 
 
 road set out had been on lands over which was for an obstruction of the public path, 
 the commissioners had no jurisdiction, the (c) 3 Salk. 182. R. v. Warde. Cro. Car. 
 
 award would have been bad as to the whole 266. R. v. Flecknow, 1 Burr. 465. 
 road.
 
 chap, xxxii. § n.] Of Nuisances to Highivays. 785 
 
 only make the alteration subject to the onus of making a good ami 
 perfect way. (d) 
 
 Having thus inquired concerning the different sorts of highways, 
 and the methods by which they may be changed, widened, or stopped 
 up, we may now consider of nuisances to highways, by obstructions. 
 
 Of Nuisances to a Highway by Obstructions. 
 
 There is no doubt but that all injuries whatsoever to a highway, 
 as by digging a ditch, or making a hedge across it, or laying logs of 
 timber in it, or ploughing it up, (e) or by doing any other act which 
 will render it less commodious to the King's subjects, are public 
 nuisances at common law. (/) And if the tenant of the land plough 
 the soil, over which another has a way, this is a nuisance to the way, 
 for it is not so easy to him as it was before, (g) If a man with a cart 
 use a common pack and prime way, so as to plough it up and render 
 it less convenient for riders, that is indictable, (h) If there be a stile 
 across a public footway of a certain height, and a man raises this stile 
 to a greater height, it is a nuisance, (i) And it is clearly a nuisance 
 at common law to erect a new gate in a highway, though it be not 
 locked, and open and shut freely, because it interrupts the people in 
 that free and open passage which they before enjoyed and were law- 
 fully entitled to ; but where such a gate has continued time out of 
 mind, it shall be intended that it was set up at first by consent, on a 
 composition with the owner of the land, on the laying out the road, in 
 which case the people had never any right to a freer passage than 
 what they continue to enjoy, (j) 
 
 It is a nuisance to suffer the highway to be incommoded by reason 
 of the foulness of the adjoining ditches, or by boughs of trees hanging 
 over it, &c. ; and it is said that the owner of land next adjoining to 
 the highway, ought of common right to scour his ditches ; but that 
 the owner of land, next adjoining to such land, is not bound by the 
 common law so to do, without a special prescription : (Jc) and it is 
 also said that the owner of trees hanging over a highway, to the 
 annoyance of travellers, is bound by the common law to lop them. (I) 
 
 (d) 3 Salk. 182. And see the cases col- v. Hayward, Cro. Car. 184. 2 Roll. Abr. 
 lected in R. v. Stoughton, 2 Saund. 160 a, Nuisance (C.). 
 
 note (12). (k) See2)ost, p. 805, note (&). 
 
 (e) R. v. Griesly, 1 Vent. 4. (I) Bac. Abr. tit. Highivays (E.). 1 
 (/) 1 Hawk. P." C. c. 76, s. 144. 2 Roll. Hawk. P. C. c. 76, ss. 5, 8, 147. Walker v. 
 
 Abr. Nuisance (B.). Overton v. Freeman, Horner, 1 Q. B. D. 4 ; 45 L. J. M. C. 34. 
 
 11C. B. 867. But tbe building of a house in a larger 
 
 (<j) 2 H. 4. 11 Vin. Abr. tit. Nuisance manner than it was before, whereby the 
 
 (G. ). See ante, p. 770, Arnold v. Blaker/ street became darker, has been held not to 
 
 (h) Per curiam, R. v. Leach, 6 Mod. 145. be a public nuisance by reason of the darken- 
 
 (i) Bateman v. Burge, 6 C. & P. 391. ing. R. v. Webb, 1 Lord Raym. 737. As 
 
 J. A. Park, J. to building a bridge across a highway see 
 
 0') 1 Hawk. P. C. c. 75, s. 9, and c. 76, post, p. 790. 1 
 s. 146. Com. Dig. tit. Cliemin (A.) 3. James 
 
 American Note. 
 
 1 An inclosed passage-way connecting 48 Am. R. 175 ; Hawkins v. Sanders, 45 
 
 two buildings across the street is an obstruc- Mich. 491 ; Hyde v. Middle-sex, 2 Gray, 267 ; 
 
 tion of the way. Bybee v. S., 94 Ind. 443, C. v. Goodnow, 117 Mass. 114. 
 vol. r. — 50
 
 786 Obstructions. [book ii. 
 
 The general Highway Act, 5 & 6 W. 4, c. 50, also relates to offences 
 of this description, imposing pecuniary penalties upon persons obstruct- 
 ing highways by means of trees or hedges ; and penalties are also 
 imposed upon persons laying stones, timber, or other matter, or leav- 
 ing any carriage, so as to obstruct the passage of any highway ; and 
 also upon persons encroaching upon them, (m) 
 
 It has been held, that if a carrier carries an unreasonable weight, 
 with an unusual number of horses, it is a nuisance to the highway 
 by the common law. (n) 
 
 It appears to have been holden, that an indictment will not lie 
 for setting a person on the footway in a street to distribute hand- 
 bills, whereby the footway was impeded and obstructed ; (o) nor 
 for throwing down skins into a public way by which a personal 
 injury is accidentally occasioned ; (p) but acts of this kind, if im- 
 properly performed, might be deemed nuisances, as it seems now to 
 be well established that every unauthorized obstruction of a highway, 
 to the annoyance of the King's subjects, is an indictable offence, (q) 
 Thus, where a waggoner occupied one side of a public street in the 
 city of Exeter, before his warehouses, in loading and unloading his 
 waggons, for several hours at a time, both day and night, and had 
 one waggon at least usually standing before his warehouses, so that 
 no carriage could pass on that side of the street, and sometimes 
 even foot passengers were incommoded by cumbrous goods lying on 
 the ground on the same side, readv for loading, he was held to be 
 indictable for a public nuisance, although it appeared that sufficient 
 space was left for two carriages to have passed on the opposite side 
 of the street, (r) Upon the same principle it is an indictable offence 
 for stage-coaches to stand plying for passengers in the public streets, 
 and thereby obstructing the same ; and Lord Ellenborough, C. J., 
 said, ' A stage-coach may set down or take up passengers in the street, 
 this being necessary for public convenience ; but it must be done in 
 a reasonable time ; and private premises must be procured for the 
 coach to stop in during the interval between the end of one journey 
 and the commencement of another.' (s) In the same case his lordship 
 intimated that there could be no doubt but that, if coaches, on the 
 occasion of a rout, should wait an unreasonable length of time in a 
 public street, and obstruct the transit of his Majesty's subjects wish- 
 ing to pass through it in carriages or on foot, the persons who might 
 cause and permit such coaches so to wait would be guilty of a 
 nuisance, (t) 
 
 (to) 5 & 6 Will. 4, c. 50, ss. 64, 65, 69, within the meaning of 5 & 6 Will. 4, c. 50, 
 
 72, &c., which makes provision also for the s. 72 ; Walker v. Horner, 1 Q. B. D. 4, but 
 
 removal of such annoyances by the surveyor an omission after notice to remove an obstruc- 
 
 and other persons. This statute does not tion is within the section. Gully v. Smith, 
 
 say that every highway shall be thirty feet 12 Q. B. D. 121. See the Highway Acts 
 
 wide ; and it has been held that it did not noticed post, p. 827. 
 
 authorize the surveyor to remove a fence in (n) Com. Dig. Chemiv, (A.) 3. R- v. 
 
 front of a house for the purpose of widening Egerly, 3 Salk. 183. 
 
 the road, which in that part was not more (o) R. v. Sarmon, 1 Burr. 516. 
 
 than twenty-four feet in breadth, such fence (p) R. v. Gill, 1 Str. 190. 
 
 not being on the highway. Lowen v. Kaye, (7) R. v. Cross, 3 Campb. 224. 
 
 4 B. & C. 3. Easton v. the Hi^hwav Board (r) R. v. Russell, 6 East, 427. Gerring 
 
 of the Richmond Highway District, 41 L.J. v. Barfield, 16 C. B. (N. S.) 597. 
 
 M. C. 25. Simply suffering trees to grow (s) R. v. Cross, 3 Campb. 224. 
 
 over the highway is not a wilful obstruction (I) R. v. Cross, supra.
 
 chap. xxxu. § ii.] Of Nuisances to Highways. 787 
 
 So it is indictable for a party to exhibit at the windows of his 
 shop, in a public street, effigies, and thereby attract a crowd to look 
 at them, which causes the footway to be obstructed so that the public 
 cannot pass as they ought to do. (u) 
 
 Laying logs of timber in a highway has been already stated as 
 one of the clear instances of nuisance, (v) And the party will not 
 be excused by showing that he laid them only here and there, so 
 that the people might have a passage through them by windings 
 and turnings, (w) And though it is not a nuisance for an inhabitant 
 of a town to unlade billets, &c, in the street before his house, by 
 reason of the necessity of the case, yet he must do it promptly, and 
 not suffer them to continue in the street an unreasonable length of 
 time, (x) An obstruction to a public highway will not be excused 
 on the plea of its being necessary for the carrying on of the party's 
 business, though such obstruction be only occasional. The defendant, 
 who was a timber merchant, occupied a small timber-yard close to a 
 street, and from the narrowness of the street and the construction of 
 his own premises, he had, in several instances, necessarily deposited 
 long sticks of timber in the street, and had them sawed into shorter 
 pieces there before they could be carried into his yard : and it was 
 contended on his behalf that he had a right so to do, as it was neces- 
 sary to the carrying on of his business ; and that it could not occasion 
 more inconvenience to the public than draymen taking hogsheads of 
 beer from their drays, and letting them down into the cellar of a 
 publican. But Lord Ellenborough, C. J., said, ' If an unreasonable 
 time is occupied in the operation of delivering beer from a brewer's 
 dray into the cellar of a publican, this is certainly a nuisance. A 
 cart or waggon may be unloaded at a gateway ; but this must be done 
 with promptness. So as to the repairing of a house, the public must 
 submit to the inconvenience occasioned necessarily in repairing the 
 house; but if this inconvenience be prolonged for an unreasonable 
 time, the public have a right to complain, and the party may be 
 indicted for a nuisance. The rule of law upon this subject is much 
 neglected, and great advantages would arise from a strict and steady 
 application of it. I cannot bring myself to doubt of the guilt of the 
 present defendant. He is not to eke out the inconvenience of his 
 own premises by taking in the public highway into his timber-yard ; 
 and if the street be narrow, he must remove to a more commodious 
 situation for carrying on his business,' {y) And in repairing or re- 
 building a house, care must be taken that the encroachment on the 
 highway be not unreasonable. The owner will himself be responsible 
 for any excess, if committed by his servants ; for, according to Eyre, 
 C. J., ' suppose that the owner of a house, with a view to rebuild or 
 
 (it) R. v. Carlisle, 6 C. &P. 636. Park, J., (x) Id. ibid, and Bac. Abr. tit. Highways 
 
 Bolland, B., and Sir J. Cross. 1 (E.). 
 
 (v) Jute, p. 785. (y) R. v. Jones, 3 Campb. 230. 
 
 (w) 2 Roll. Abr. 137. 1 Hawk. P. C. 
 c. 76, s. 145. 
 
 American Note. 
 
 1 As to rights of processions, see C. v. v. Ward, 13 Mass. 299 ; Cole v. Fisher, 11 
 Ruggles, 6 Allen, 588 ; S. v. Hughes, 72 Mass. 137. 
 N. C. 25. As to military parade, see Moody
 
 788 Obstructions. [book ii. 
 
 repair, employ his own servants to erect a hoarding in the street (which 
 being for the benefit of the public, they may lawfully do), and they 
 carry it out so far as to encroach unreasonably on the highway, it is 
 clear that the owner would be guilty of a nuisance.' (z) 
 
 By an old Act, an ancient highway running over the land of Lord 
 Stourton was made a turnpike road, and afterwards collieries were 
 worked on each side of the road, and railways made from time to time 
 across the road for the conveyance of the coals from the collieries. 
 In the 1 & 2 Geo. 4, a new Act passed for repairing the same road. 
 One of the former railways was continued and new railways made 
 afterwards across the road for the same purposes as before. By a 
 clause in this Act a penalty, recoverable on summary conviction, was 
 imposed on any person who made any railway across the road ' with- 
 out the consent of the trustees or legal authority : ' and it was held 
 that the making and continuing of the railways was indictable, and 
 that no inference could be drawn to the contrary from the facts of the 
 case or the words of the last Act. To do the work complained of, 
 the turnpike road was dug into, but filled up again and restored to 
 its former state, except that the railroad remained, forming a groove 
 of wood, adapted to the wheels of the railway carriages, and so far 
 sunk into the road that the highest part of it was on a level with the 
 road ; and, upon a special case empowering the Court to draw infer- 
 ences as a jury, after a verdict of guilty, it was held that the Court 
 could not pronounce the injury created by this work to be too slight 
 and uncertain to be indictable, (a) 
 
 Upon an indictment for obstructing a highway, it appeared that the 
 defendant laid down on a highway a double line of tramways, on 
 which omnibuses plied for hire ; and these tramways and omnibuses 
 were dangerous and inconvenient to many of the public, as the wheels 
 of vehicles skidded when crossing the tramways, and horses which 
 put their feet upon them were frightened ; a very large number of 
 persons used the omnibuses as a means of transit, to the great saving 
 of their time and money, and the vestry-men of the parish through 
 which the tramways ran had sanctioned their being made ; Erie, 
 C. J., directed the jury that, if the tramways were a source of danger 
 and inconvenience to a portion of the public, who had a right to use 
 the highway, they were a nuisance without reference to their being 
 for the general convenience ; and it was held that this direction was 
 right ; for supposing it possible that an arrangement for the use of a 
 highway in a particular manner being for the advantage of the public 
 would be an answer to an indictment for that arrangement, this was 
 not an arrangement for the ordinary use of the highway, but was 
 withdrawing so much of the highway from its ordinary use as such ; 
 for it was impossible to use as an ordinary part of this highway the 
 portion taken up by the tramways, (b) So where, on a like indict- 
 ment it appeared that telegraph posts were erected with the assent of 
 the authorities, who were the guardians of the highways, either on 
 the highway, or on strips of land by the side thereof; Martin, B., 
 held that a permanent obstruction erected on a highway, without 
 
 (:) Bush v. Steininan, 1 Bos. & Pul. 407, (b) R. v. Train, 2 B. & S. 640. R. v. 
 
 108. Morris, 1 B. & Ail. 441. 
 
 (a) R. v. Charlesworth, 16 Q. B. 1012.
 
 chap. xxxn. § ii.] Of Nuisances to Highways. 78 ( J 
 
 lawful authority, which renders the way less commodious to the: 
 public, is a nuisance; and if the jury believed that the defendants 
 placed [for the purpose of profit to themselves] posts with the inten- 
 tion of keeping them permanently there [in order to make a telegraph 
 communication between distant places], and did permanently keep 
 them there, and the posts were of such size as to obstruct the passage 
 of carriages, horses, or foot passengers on the part of the road where 
 they stood, the jury ought to find the defendants guilty ; and that 
 the circumstances that the posts were not placed on the hard part of 
 the road, or upon a footpath formed upon it, or that sufficient space 
 for the public traffic remained, were immaterial ; and this ruling was 
 held right ; because in effect it came to this, whether there was a 
 practical obstruction to the public using the highway, (c) 
 
 It is a nuisance to break up the streets in a town for the purpose 
 of laying down gas pipes, (d) and where certain commissioners had 
 power to light the public streets of a town and to lay down pipes for 
 that purpose, but no power to lay down pipes for the supply of 
 private houses, and they transferred their powers to a company who 
 had no powers as a gas company ; it was held that this company was 
 indictable for laying down pipes to private houses, but not for laying 
 down pipes for the public lighting of the town, (e) 
 
 Wherever a public way exists, the public have a right to enjoy it 
 with ease and security, and if a man prevents that enjoyment, even 
 by the use of his own property, he is guilty of a nuisance. If, there- 
 fore, the owner of land over which a public way passes excavates his 
 land on each side thereof so as to leave the line of the way between 
 two precipices, or makes an excavation so near to one side of the way 
 that a person walking upon it might, by making a false step, or being af- 
 fected by sudden giddiness, or in consequence of its being dark, or in the 
 case of a horse or carriage way, might by the sudden starting of a horse, 
 be thrown into the excavation, this is a public nuisance ; for the danger 
 thus created may reasonably deter prudent persons from using the way, 
 and thus the full enjoyment of it by the public, is, in effect, as much 
 impeded as in the case of an ordinary nuisance to a highway. (/) 
 
 Nor can it be doubted that many other things may be done so near 
 to a highway as to create a nuisance, as the running of railway loco- 
 motives, (g) erecting a windmill and the like, so near to the highway 
 as to frighten horses travelling upon it. 
 
 (c) R v. The United Kingdom Electric the area and was killed. Hardcastle v. The 
 Telegraph Co., 6 Law T. 378. 9 Cox, C. C. S. Yorkshire Railway and River Dun Co., 4 
 137, 174. The parts between brackets are H. & N. 67. Hounsell v. Smyth, 7 C. B. 
 clearly immaterial; and 'permanently' is (N S.) 731. Wettor v. Tank, 4 F. & F. 
 too strong a term, as an obstruction for even '298. 
 
 a day would be enough. (g) Vaughan v. aff Vale R. Co., 5 H. & 
 
 (d) Ellis v. Sheffield Gas Consumers Co., X. 679; R. v. Pease, 4 B. & Adol. 30. 
 2 E. & B. 767. Using a traction-, engine and trucks on a 
 
 (e) R. v. Longton Gas Co., 8 Cox, C. C. highway is not an indictable nuisance unless 
 317. 2 E. & E. 651. it creates a substantial obstruction and occa- 
 
 (/) Barnes v. Ward, 9 C. B. 392 ; where sions greater delay and inconvenience than 
 
 an area was excavated close to an immemorial would have been caused by carts or horses, 
 
 footway, and left unfenced, and a person R. v. Chittenden, 15 Cox, C. C. 725, 1 and 
 
 passing along the way, the night being dark, see Simkin v. L. & ST. W. R. Co., 21 Q. B. 
 
 without any negligence of her own, fell into D. 453. 
 
 American Note. 
 1 Anything adjoining a public carriage- Ayer v. Norwich, 39 Conn. 376, 12 Am. R. 
 way which will probably frighten ordinarily 396; S.v. Useful Society, 13 Vroom, 504 ; 
 quiet horses is an obstruction to the highway. Cincinnati Ry. v. C, 80 Ky. 137.
 
 790 Obstructions. [book ii. 
 
 It has been doubted whether a person can build a bridge over a 
 highway, (h) But it is plain that this must be a question for a jury 
 in every case ; for a bridge may be built in such a manner as either 
 to be no nuisance or a great nuisance to a highway, (i) 
 
 Defendant had a lamp projecting from his premises over a footway 
 in a street. It fell on the plaintiff, who was passing underneath, and 
 injured her. Defendant had shortly before employed a competent 
 person, C, to put the lamp in good repair, but at the time it fell it 
 was, though not to his knowledge, in a dangerous and decayed state. 
 The jury found there was no personal negligence in the defendant, 
 but there was negligence in C. : — Held, by Lush and Quain, JJ., 
 that it was the absolute duty of the defendant, as occupier of the 
 premises having a lamp in such a position, to prevent its becoming 
 dangerous to the public ; that if, in fact, it did become dangerous, it 
 was a nuisance, and for any injury caused by such nuisance defend- 
 ant was liable ; and that he could not shift the liability arising from 
 such a duty from himself by having employed a competent person to 
 do the necessary repairs. By Blackburn, J., 'that as the defendant 
 in this case had express knowledge shortly before the injury of the 
 lamp needing repair, he was then bound to put it into reasonable 
 repair ; and was liable for the consequences of its not being in repair, 
 arising from the breach of duty in the person, however competent, 
 whom he had employed ; it was therefore not necessary to decide, 
 and quaere, whether, if the danger arose from a latent defect, or from 
 the act of a wrongdoer without defendant's knowledge, he would be 
 liable for an injury so happening.' (J) 
 
 There can be no doubt that any contracting or narrowing of a 
 public highway is a nuisance : it is frequently, however, difficult to 
 determine how far in breadth a highway extends, as where it runs 
 across a common, or where there is a hedge only on one side of the 
 way, or where, though there are hedges on both sides, the space 
 between them is much larger than what is necessary for the use of 
 the public : in these cases it would be for a jury to determine how 
 far the way extended, (k) In one case, Lord Tenterden, C. J., said, 
 ' I am strongly of opinion when I see a space of fifty or sixty feet, 
 through which a road passes, between enclosures set out under an 
 Act of Parliament, that, unless the contrary be shown, the public 
 are entitled to the whole of that space, although, perhaps, from econ- 
 omy the whole may not have been kept in repair. If it were once 
 held that only the middle part, which carriages ordinarily run upon, 
 was the road, you might by degrees enclose up to it, so that there 
 would not be room left for two carriages to pass. The space at the 
 sides is also necessary to afford the benefit of air and sun. If trees 
 and hedges might be brought close up to the part actually used as the 
 road, it could not be kept sound.' (/) The extent of a highway where 
 it passes over a common, is frequently still more indefinite to the 
 
 (h) Hole v. Sittingbourne and Sheerness (Jc) See Brownlow v. Tomlinson, 1 M. & 
 
 Railway Co., 6 H. & N. 488. Gr. 484. 
 
 (/) See R. v. Betts, 16 Q. B. 1022, post, (/) R. v. Wright, 3 B. & Ad. 681. Artie, 
 
 Rivers. p. 768. The space at the sides of roads is 
 
 (j) Tarry v. Ashton, 45 L. J. Q. B. 260 ; also particularly useful for cattle to travel 
 
 1 Q. B. D. 314. upon, as they get footsore on the stoned
 
 chap. xxxn. § II.] Of Nuisances to Highways. 791 
 
 right and left of what may be the ordinary passage. Upon an indict- 
 ment for enclosing strips of land upon the sides of a highway, the 
 question is, were these strips part of the highway, and used as such 
 by the public ? (m) 
 
 And as it has been held that it is no defence to an indictment for 
 a nuisance to a navigable river to prove that, although the work be 
 in some degree a hindrance to navigation, it is advantageous in a 
 greater degree to other uses of the river ; (n) so, it should seem, that 
 it is no defence to an indictment for a nuisance to a highway, that 
 the thing complained of furnishes, on the whole, a greater convenience 
 to the public than it takes away, (o) 
 
 But where an Act authorised the making of a railroad near a high- 
 way, and the locomotive engines frightened the horses travelling on 
 the highway, it was held that an indictment could not be sustained ; 
 for the legislature must be presumed to have known that travellers 
 upon the highway would, in all probability, be incommoded by the 
 engines using the railroad, and therefore there was nothing unreason- 
 able in supposing the legislature intended that the part of the public 
 which should use the highway should sustain some inconvenience for 
 the sake of the greater good to be obtained by other part of the public 
 travelling along the railway, (j?) 
 
 But where a statute authorises any company or persons to inter- 
 meddle with a highway provided they fulfil certain conditions, and 
 they interfere with the highway without performing those conditions, 
 they are liable to be indicted, and either the body corporate or the 
 persons who cause the highway to be interfered with may be 
 indicted. 
 
 Upon an indictment for obstructing a highway, it appeared that the 
 Manchester and Leeds Railway Company were empowered by statute 
 to cut through and make obstructions in public roads for the pur- 
 poses of the Act, doing as little damage as might be, and subject to 
 the provisions and restrictions therein mentioned, and a subsequent 
 section enacted that wherever any part of any public road should be 
 found necessary to be cut through or so much injured as to be impas- 
 sable or inconvenient for passengers, the company should, before any 
 such road should be cut through, cause a good and sufficient road to 
 be made instead thereof, as convenient for passengers and carriages as 
 the road cut through, or as near thereto as might be. The company 
 when making their railway, stopped up the public highway, and made 
 a branch restoring the communication between the termini formerly 
 connected by that highway, but by a different line. The new road 
 was stated to be in some respects more convenient to the public than 
 the old, but in others less so. The level of the adjacent land made it 
 impracticable to give a more convenient line consistently with the 
 regulations of the Act, unless at an expense which, it was said, would 
 
 roads. R. v. The London and Birmingham (n) R. v. Ward, 4 Ad. & E. 384, overrul- 
 
 R. Co., 1 Railway Cases, 317. R. v. The ing R. v. Russell, 6 B. & C. 566. 
 
 United Kingdom Electric Telegraph Co., (o) See R. v. Train, ante, p. 788. 
 
 ante, p. 789. Elwood v. Bullock, 6 Q. B. (p) R. v. Pease, 4 B. & Ad. 30. R. v. 
 
 383. Bradford Navigation, 34 L. J. Q. B. 191. 
 
 (m) R. v. Johnson, 1 F. & F. 657. Vaughan v. Taff Vale R. Co., 5 H. & N. 
 
 679/
 
 792 Obstructions. [book ii. 
 
 be unreasonably great, and quite disproportioned to the benefit which 
 would accrue from it to any part of the public. Maule, J., directed 
 the jury to find a verdict of not guilty if they thought that the com- 
 pany had done no more damage than was necessary, and had made 
 the road as convenient as the former one, or as nearly so as might be : 
 intimating, as his own opinion, that the road could not be deemed 
 absolutely as convenient even after allowing for the advantages which 
 the public might have gained from it. But that the company were 
 not, in his opinion, bound to lay out enormous sums of money to 
 procure a slight accommodation to some persons ; and that the proper 
 rule seemed to be, that, if they could not make the road as conven- 
 ient as before without a very disproportionate and unwarrantable 
 expenditure, they should make it as nearly so as they could. And he 
 left it to them to say whether the new road was as convenient as the 
 old, or if not as nearly so as might be. The jury found a verdict of 
 guilty, and on a motion for a new trial it was contended that an 
 indictment would not lie because the act charged was one which the 
 statute permitted. Lord Denman, C. J., ' The work complained of as 
 a nuisance, and undoubtedly making one, is the cutting through of the 
 carriage road. Now there is no question as to their right to do this ; 
 and though they are required, when they do it, to cause another road 
 to be set out and made instead of it, they argue that they are no 
 longer indictable for a nuisance in doing the lawful act, however they 
 may be for disobedience of the law in neglecting to substitute another. 
 The prosecutors reply by referring to the section, which requires the 
 company to cause the new road to be made before they cut through 
 the old. But the company rejoin, that from the state of the earth 
 there it was impossible to do this, and could not be intended by the 
 legislature. This argument we think inadmissible, for reasons too 
 obvious to require a full statement of them. The company have done 
 what the Act legalizes only on a condition, which they have not per- 
 formed. They stand convicted of the nuisance and show no justifica- 
 tion. The verdict will therefore not be disturbed.' (q) 
 
 The Eailway Clauses Consolidation Act, 8 & 9 Vict. c. 20, s. 49, 
 enacts that when any railway is carried over a turnpike road by a 
 bridge, the arch shall be such as to leave a clear space of not less 
 than thirty-five feet. Sec. 51 enacts that wherever the average avail- 
 able width for the passage of carriages of any existing roads is less 
 than the width hereinbefore prescribed for bridges over the railway, 
 the width of such bridges need not be greater than such average 
 available width; but so that such bridges be not of less width in 
 the case of a turnpike or public carriage road than twenty feet ; that 
 if such average available width shall be at any time increased beyond 
 the width of such bridge, the railway company shall be bound to 
 widen the bridge to such extent as they may be required by the 
 trustees or surveyors of the road, not exceeding the width of the road 
 as so widened, or the maximum width herein or in the special Act 
 prescribed for a bridge in like case over a railway ; and it has been 
 held that the effect of this clause is that if the average available 
 width for the passage of carriages on any road is more than thirty- 
 
 (q) R. v. Scott, 3 Q. B. 543, and see R. v. Birmingham and Gloucester R. Co., 2 Q. B. 
 47. R. v. Burt, 11 Cox, C. C. 399.
 
 chap. xxxn. § ii.] Of Nuisances to Highways. TiJ^ 
 
 five feet, the road may be narrowed to thirty-five feet under the arch ; 
 where it is less, the arch may be made the same width as the road, 
 so that it be not less than twenty feet wide, and if the load be after- 
 wards widened, the arch must be widened in proportion up to, but 
 not beyond, thirty-five feet; but in this reckoning footpaths are not 
 to be included. By the Local Government Act, 1894, it is now tin; 
 duty of a district council to protect all public rights of way, and to 
 prevent as far as possible the stopping or obstruction of any such right 
 of way whether within their own district or in an adjoining district, 
 where the stoppage would be prejudicial to the interests of their dis- 
 trict, and also to prevent any unlawful encroachment on any roadside 
 waste within their district, and for this purpose they may institute 
 legal proceedings and take such steps as they deem expedient, and if 
 they fail to take proceedings the parish council may petition the 
 county council, who may then have all the powers of the district 
 council (see 56 & 57 Vic. c. 73, s. 26). (r) 
 
 An incorporated railway or other company may be indicted for 
 obstructing a highway ; : for though a corporation cannot be guilty of 
 treason, felony, or other offences, which derive their character from 
 the corrupted mind of the person committing them, and are violations 
 of the social duties that belong to men and subjects, they may be 
 guilty as a body corporate of commanding acts to be done to the 
 nuisance of the community at large, (s) 
 
 Of Nuisances to a Highway by the Neglect to Repair. 
 
 As a nuisance in not repairing highways is an offence (t) in the 
 nature of a nonfeasance, the principal inquiry upon this subject will 
 be as to the persons who are liable to be called upon to keep them 
 in repair. 
 
 The inhabitants of the parish at large are prima facie, and of 
 common right, bound to repair all highways lying within it, 
 unless, by prescription or otherwise, they can throw the burden 
 upon particular persons, (u) And to such an extent is this 
 
 (r) R. v. Rigby, 14 Q. B. 687. body corporate ; and they cannot plead by 
 (s) R. v. The Great North of England R. attorney here, because, although they can 
 Co., 9 Q. B. 315. See R. v. The Binning- appoint an attorney, the attorney cannot 
 ham and Gloucester R. Co., 3 Q. B. 223. plead for them in this Court.' The indict- 
 Where two defendants, members of a corpo- ment should have been removed by certiorari 
 rate body, entered into their recognizances to the civil side of the Court, where the de- 
 to appear and plead to an indictment for Pendants could appear by attorney, 
 non-repair of a highway, the judge sitting at (f) Under the 11 & 12 Viet. c. 63 (Pub- 
 the assizes in the Crown Court ordered them lie Health Act, 1848), no action lies against 
 to be discharged from such recognizances on a local board for the non-repair of a highway. 
 the ground that they were entered into per Gibson v. Preston (Mayor of), 39 L. J. Q. B. 
 incuriam. R. v. The Bury Improvement 131. L. R. 5 Q. B. 218. Cowley v. New- 
 Commissioners, 11 Cox, C. C. 641, et per market Local Board (1892), A. C. 345. 
 Cleasby, B. ' They cannot plead here be- (u) 1 Hawk. P. C. c. 76, ss. 5, 6, 7, 8. 
 cause they cannot plead in person, being a Austin's case, 1 Vent. 189. Anon., 1 Lord 
 
 American Note. 
 
 1 This is so in New Jersey, Massachusetts, not in Maine or Virginia. See Bishop i. 
 Vermont, Pennsylvania, and Tennessee, but 420.
 
 794 Neglect to Repair. [book II. 
 
 obligation, that if the inhabitants of a township bound by pre- 
 scription to repair the roads within the township be expressly 
 exempted by the provisions of a road Act from the charge of 
 repairing new roads to be made within the township, that charge 
 must necessarily fall upon the rest of the parish, (v) And where a 
 statute enacted that the paving of a particular street should be under 
 the care of commissioners, and provided a fund to be applied to that 
 purpose, and another statute, which was passed for paving the streets 
 of the parish, contained a clause that it should not extend to the par- 
 ticular street, it was held that the inhabitants of the parish were not 
 exempted from their common-law liability to keep that street in 
 repair ; that the duty of repairing might be imposed upon others, and 
 the parish be still liable ; and that the parish were under the obliga- 
 tion, in the first instance, of seeing that the street was properly 
 paved, and might seek a remedy over against the commissioners, (w) 
 And where a local turnpike Act, empowering the trustees under it to 
 take tolls, directed that the roads should from time to time be repaired 
 by the trustees, out of the money arising by virtue of that Act, it was 
 holden that this only made the tolls an auxiliary fund in the hands 
 of the trustees ; and that the inhabitants of the township where the 
 road was situate, who by prescription were bound to repair all roads 
 within it, were nevertheless liable to be indicted for the nonrepair of 
 the road, (x) And where upon an indictment against a township for 
 the nonrepair of a highway it appeared that by the 12 Geo. 1, c. 38, 
 s. 15, the proprietors of a canal were ordered to make the highway in 
 question and keep it in repair, and were made liable to indictment 
 and fine in case of default, and the 17th section provided that nothing 
 in the Act should excuse the inhabitants of the township from con- 
 tributing to the repairs with their carts, &c, or otherwise, as they 
 were then obliged to do by law ; and the jury found that the highway 
 was an ancient highway, and therefore the liability of the township 
 existed at the time the Act passed ; the Court of Queen's Bench held 
 that the intention to preserve the common-law liability of the towm- 
 ship was sufficiently declared, and although the probable intention 
 was that each party should contribute to the repair, and no provision 
 was made for adjusting the proportion of each, the difficulty of appor- 
 tioning the burden did not create an exemption for either, and there- 
 fore an indictment for nonrepair lay against the township, (y) and 
 also against the company ; for although the expenses of the repairs of 
 the road had exceeded the amount of tolls received, it did not follow 
 that the other resources of the company were not adequate, and, even 
 if they were not, the obligation was imposed without condition, and 
 the liability to indictment for nonrepair expressly enacted, (z) 
 
 Raym. 725. The common-law liability of a (x) R. v. Netherthong, 2 B. & A. 179. 
 
 parish to repair its highways has not been It was also holden that such inhabitants 
 
 transferred by the Metropolis Local Manage- might, after conviction, apply by motion 
 
 ment Act, 1855 (18 & 19 Vict. c. 120), to for relief against the trustees under the 13 
 
 the vestries constituted under that Act. Geo. 3, c. 84, s. 33. See also R. v. The 
 
 Parsons v. the Vestry of the parish of St. Inhabitants of Oxfordshire, 4 B. & C. 194, 
 
 Matthew, Bethnal Green, 37 L. J. C. P. 62. post, Bridges. 
 
 (v) R. v. Sheffield, 8 T. R. 106. See (y) E. v. Brightside Bierlow, 13 Q. B. 
 
 Anon., 1 Lord Raym. 725. 933. 
 
 (w) R. v. St. George, Hanover Square, (z) R. v. Sheffield Canal Co., 13 Q. B. 
 
 3 Campb. 222. 913.
 
 chap. xxxn. § ii.] Of Nuisances to Highways. 795 
 
 No agreement can exonerate a parish from the common-law liability 
 to repair; and a count in an indictment against the corporation of 
 Liverpool, stating that they were liable to repair a highway, b;j vir- 
 tue of a certain agreement with the owners of houses alongside of it, 
 was held to be bad, on the ground that the inhabitants of the parish, 
 who are prima facie bound to the repair of all highways within their 
 boundaries, cannot be discharged from such liability by any agree- 
 ment with others, (a) 
 
 Upon an indictment against the township of S., for not repairing a 
 road within it, on a custom alleged and proved that all the townships 
 in the parish repaired their own roads, it was proved that the town- 
 ship was adjacent to the township of N. M. in another parish, and 
 that an agreement had been made, two hundred and fifty years before, 
 between the then owner of the whole of S., and the then owners of 
 the whole of N. M., whereby the boundary between the properties 
 was marked out, and the owner of S. agreed to allow the owners of 
 N. M., and the rest of the inhabitants of N. M., a road through S., of 
 which the owner of S. was to repair half and the owners of N. M. 
 the other half (which was the part indicted), and that a sufficient 
 lawyer should make further assurance for the performance of the 
 agreement. The owner of S. afterwards filed a bill for a specific per- 
 formance, but it did not appear what the result of the suit was. As 
 far back as living memory went, the inhabitants of N. M. had repaired 
 the road from the boundary of the townships for the distance men- 
 tioned in the agreement within about twenty yards ; it was held that 
 this was not evidence for a jury of an instrument binding the owners 
 of N". M., and all claiming through them, (b) 
 
 With respect to the repair of roads dedicated to the public by the 
 owner of the soil, although it was once considered that, notwithstand- 
 ing the use by the public, the parish was not liable to repair, unless 
 there had been on their part some act of acquiescence or adoption ; (c) 
 it was afterwards expressly decided, (d) that the inhabitants of a 
 parish were bound to repair all roads within it dedicated to and used 
 by the public, although there were no adoption of such roads by the 
 parish, (e) 
 
 But now by the 5 & 6 Will. 4, c. 50, s. 23, ' no road or occupation 
 way made or hereafter to be made by and at the expense of any indi- 
 vidual or private person, body politic or corporate, nor any roads 
 already set out or to be hereafter set out as a private driftway or 
 horsepath in any award of commissioners under an inclosure Act, 
 shall be deemed or taken to be a highway which the inhabitants of 
 any parish shall be compellable or liable to repair, unless the person, 
 body politic or corporate, proposing to dedicate such highway to the 
 use of the public, shall give three calendar months' previous notice in 
 writing to the surveyor of the parish of his intention to dedicate such 
 highway to the use of the public, describing its situation and extent, 
 
 (a) R. v. The Mayor, &c, of Liverpool, (c) R, v. St. Benedict, 4 P.. & A. 450. 
 3 East, 86. And see Bac. Abr. tit. Highways Per Bayley, J. 
 
 (F.). (d) R. v. Horlev, 8 Law T. 3S2. 
 
 (b) R. v. Searisbrick, 6 A. & E. 509; (e) R. v. Leake', 5 B. & Ad. 469. R. v. 
 2 N. & M. 583; see post, p. 800. Newbold, 11 Cox, C C. 231, and see R. v. 
 
 Southampton, 19 Q. B. D. 590, post, p. 819.
 
 796 Liability to Repair. [book ii. 
 
 and shall have made or shall make the same in a substantial manner, 
 and of the width required by this Act, and to the satisfaction of the 
 said surveyor and of any two justices of the peace of the division in 
 which such highway is situate in petty sessions assembled, who are 
 hereby required, on receiving notice from such person or body politic 
 or corporate to view the same, and to certify that such highway has 
 been made in a substantial manner, and of the width required by this 
 Act, at the expense of the party requiring such view, which certificate 
 shall be enrolled at the quarter sessions holden next after the grant- 
 ing thereof, then and in such case, after the said highway shall have 
 been used by the public, and duly repaired and kept in repair by the 
 said person, body politic or corporate, for the space of twelve calendar 
 months, such highway shall for ever thereafter be kept in repair by 
 the parish in which it is situate ;(/) provided, nevertheless, that on 
 receipt of such notice as aforesaid the surveyor of the said parish 
 shall call a vestry meeting of the inhabitants of such parish, and if 
 such vestry shall deem such highway not to be of sufficient utility to 
 the inhabitants of the said parish to justify its being kept in repair at 
 the expense of the said parish, any one justice of the peace, on the 
 application of the said surveyor, shall summon the party proposing to 
 make the new highway to appear before the justices at the next (g) 
 special sessions for the highways to be held in and for the division in 
 which the said intended highway shall be situate ; and the question 
 as to the utility as aforesaid of such highway shall be determined at 
 the discretion of such justices.' (h ) 
 
 The term ' made ' as used in the Act, applies to a road formed or 
 made, but not completely dedicated by use or otherwise at the passing 
 of the Act ; but roads dedicated at that time are out of the operation 
 of the Act. (i) 
 
 This section does not prevent the way from becoming public, but 
 only exempts a parish from the liability to repair the way where the 
 steps required by this section have not been adopted. An action, 
 therefore, may be maintained for obstructing a way dedicated to the 
 public and used by them, although it has never been repaired by the 
 parish, and neither the notice of dedication has been published, nor 
 the certificate given as required by this section, (j) And where a road 
 has been dedicated to the public by a landowner, but the conditions of 
 
 (/) As to making private roads repairable P>. v. Derbyshire, E. 13. & E. 69. See R. v. 
 
 by the parish, under the Highway Act, 1862, the Paddington Vestry, 9 B. & C. 456, where 
 
 see 25 & 26 Vict. c. 61, s. 36, noticed post, a somewhat similar clause in a local Act was 
 
 p. 830. As to declaring private streets where brought in question. See R. v. Dukinfield, 
 
 properly made, &c, highways, under the 4 B. k S. 158, as to the steps necessary to 
 
 Public Health Act, 1875, see s. 152, post, be taken under this sect., and the Public 
 
 p. 836. And as to making, under that Act Health Act, 11 & 12 Vict. c. 63, s. 70, to 
 
 of Parliament, new roads repairable by the render a road repairable by a parish, 
 inhabitants of the district, see s. 146, post, (i) R. v. Westmark, 2 M. & Rob. 305, 
 
 p. 834. Maule, J. See R. v. East Hagbourne, ante, 
 
 [g) See R. v. Bagge, 44 L. J. M. C. 45, p. 783, where the decision turned on another 
 
 where the surveyor omitted to summon the point, and this point was not noticed. See 
 
 partv at the next sessions. Hirst v. Halifax (Local Board of Health of), 
 
 (h) See R. v. Bagge, 44 L. J. M. C. 45. 40 L. J. M. C. 43. R. v. Thomas, 7 E. & 
 
 If the justices make an order deciding in B. 399 ; ante, p. 773, where a road was 
 
 conformity with the vestry that the way is made by turnpike trustees. 
 not of sufficient utility, an appeal lies by the (j) Pioberts v. Hunt, 15 Q. B. 17 
 
 person dedicating the way to the sessions.
 
 chap. xxxn. § II.] Of Nuisances to Hi gl > ways. 797 
 
 this section have not been fulfilled, if a positive obstruction be erected 
 in it, the party causing such obstruction is liable for so doing ; but it 
 the road be simply unfit for use, from the state of the weather, or from 
 mere want of repair, the public lose the use of it, and neither the land- 
 lord nor any one else is liable to the repair of it. (Jc) 
 
 Formerly it was held that if a parish lay in two counties, the in- 
 habitants of that part of the parish in which the road charged to be 
 out of repair lay, were bound to repair it, and not the inhabitants of the 
 whole parish. (/) But it has since been decided that if part of a 
 parish be situate in one county and the rest in another, and a high- 
 way lying in one part be out of repair, an indictment against the 
 inhabitants of that part only is bad ; and that in such case the indict- 
 ment must be against the whole parish, (m) And it appears to have 
 been always considered that the indictment under such circumstances 
 must be preferred in that county wherein the ruinous part of the 
 road lies. (?t) If the indictment be against that part of the parish 
 only which lies in the county in which the indictment is preferred, it 
 must show on what account such part only is chargeable, otherwise it 
 will be bad in substance : and the objection may be taken, even after 
 an issue on the point, whether the inhabitants of that part were bound 
 to repair, and a verdict for the crown, (o) 
 
 The 5 & 6 Will. -4, c. 50, s. 58, which, when the boundaries of 
 parishes are in the middle of highways, gives two justices power to 
 divide such highways by a transverse line, has been already no- 
 ticed, (p) The object of that statute was to facilitate the repairing of 
 a highway so situated : and it enacts that the justices may order that 
 the whole of such highway, on both sides, in one of such parts, shall 
 be repaired by one of such parishes ; and that the whole of such high- 
 way, on both sides, in the other of such parts, shall be repaired by the 
 other of such parishes : and that they shall cause their order and" plan 
 of the highway to be filed with the clerk of the peace. Provided, 
 nevertheless, ' that in the case of any such last-mentioned highway, 
 the repair of any part of which belongs to any body politic or cor- 
 porate, or to any person, by the reason of tenure of any lands, or 
 otherwise howsoever, the same proceedings may be adopted, but the 
 said body politic or corporate, or person, or some one on their behalf, 
 may appear before such justices, and object to such last-mentioned 
 proceedings, in which case the said justices shall, before they divide 
 such highway as aforesaid, hear and consider the objection so made, 
 and determine the same.' 
 
 Sec. 59. ' After such order and plan shall be so filed with the 
 clerk of the peace as aforesaid, such parishes and body politic or cor- 
 porate, or person aforesaid, respectively, shall be bound as of common 
 
 (k) R. v. Wilson, 18 Q. B. 348. The not repairing a road, it is not necessary for 
 
 fact that the landowner has done repairs since the prosecutor to serve every individual in 
 
 the dedication, makes no difference. the parish with process ; he may compel the 
 
 (I) R. v. Weston, 4 Burr. 2507. appearance of any two, who live within the 
 
 (m) R. v. Clifton, 5 T. R. 498. county, upon whom the whole tine may be 
 
 (n) R. v. Clifton, 5 T. R. 498 ; and R. v. levied ; and the rest of the inhabitants must 
 
 Weston, supra. In R. v. Clifton, Lord reimburse those two under the general high- 
 
 Kenyon, C. J., in answ-er to one of the sup- way Act.' 
 posed difficulties of this mode of proceeding, (o) R. v. Clifton, supra. 
 
 said, ' On an indictment against a parish for (p) Ante, p. 780.
 
 798 Liability to Repair. [book ii. 
 
 right to maintain and keep in repair such parts of such highways so 
 allotted to them as aforesaid, and shall be liable to be proceeded against 
 for neglect of such duty, and shall in all respects whatsoever be liable 
 and subject to all the provisions, regulations, and penalties contained 
 in this Act, and also shall be discharged from the repair of such part 
 of such highway as shall not be included in their respective allot- 
 ment.' (q) Sec. 61, the statute shall not affect or alter the boundaries of 
 counties, lordships, &c, nor any other division of public or private 
 property, nor the boundaries of parishes, otherwise than for the pur- 
 pose of repairing such particular portion of the highways. 
 
 Where an order was made by two justices for apportioning a high- 
 way in the form given by the 34 Geo. 3, c. 64, s. 1 (r) it was held 
 that such order was conclusive as to the fact that part of the highway 
 so apportioned lay in each of the parishes, and that it was not compe- 
 tent for one of the parishes, upon an indictment for not repairing the 
 part allotted to it by the order, to prove that in fact at the time the 
 order was made no portion of such part was in that parish, and there- 
 fore the justices had no jurisdiction to make the order, on the ground 
 that, although the statute did not require the justices to find expressly 
 that part of the way is in either parish, yet as they are ' to examine ' 
 and then ' finally determine the matter,' that implies that they are 
 to be satisfied as to the situation of the highway in the respective 
 parishes, (s) 
 
 Where a road lay in two parishes, and no division and allotment 
 under this statute had been made, it was held that an indictment 
 against one of the parishes for not repairing one side of the road ought 
 to have stated that the parish was liable to repair ad Jilum vice ; and 
 it seems that in such case it is not sufficient to aver that a certain 
 part of the road (setting out the length and one-half of the breadth) 
 is out of repair, and that the inhabitants, &c, ought to repair it. (t) 
 
 Exceptions were taken to an indictment for suffering a highway to 
 be very muddy, and so narrow that people could not pass without 
 danger of their lives ; first, that it is no offence for a highway to be 
 dirty in winter ; and, secondly, that the parish had no power to widen 
 it, as there was a particular power vested by Act of Parliament in 
 justices of the peace to do so. The indictment was held bad for want 
 of saying that the way was out of repair ; and one of the judges 
 observed, that saying that the way was so narrow that the people 
 could not pass was repugnant to its being ' the King's highway ; ' for 
 that if it had been so narrow, the people could never have passed there 
 time out of mind, (w) 
 
 (q) Sec. 60 provides for the costs in thus boundary on the highway to be divided is a 
 
 apportioning highways ; and sec. 61 provides condition precedent, and the Court quashed 
 
 for the manner in which highways repairable an order, which had been confirmed at ses- 
 
 by reason of tenure, or otherwise howsoever, sions, because on the facts stated it did not 
 
 may be made parish highways. See the 25 appear that there was such a boundary, but 
 
 & 26 Vict. c. 61, ss. 34, 35, noticed post, this was on the ground that all the facts 
 
 p. 829, where there are district boards. were brought before the Court. See Mould 
 
 (r) Which contained similar provisions v. Williams, 5 Q. B. 469. 
 to the 5 & 6 Will. 4, c. 50, s. 58, and is re- (t) R. v. St. Pancras, Peake Rep. 219. 
 
 pealed hy the latter Act. («) R. v. Stretford, 2 Lord Raym. 1169. 
 
 (s) R. v. Hickling, 7 Q. B. S80. See R. And it is the same as to a bridge ; an indict- 
 
 v. Perkins, 14 Q. B. 229, that to the juris- ment does not lie for not widening it. R. v. 
 
 diction under this clause the existence of a Devon, 4 B. & C. 670.
 
 chap, xxxii. § ii.] Of Nuisances io Highways. 799 
 
 Where a road indicted led across a small inlet or estuary of a river 
 not far from its mouth, and was not passable at high water, and un- 
 usually a soft sludge at ebb ; Patteson, J., directed the jury that if 
 they thought the want of repair arose from the nature of the spot 
 over which the road passed, and was occasioned by the river Mowing 
 over it at every tide, washing away the materials placed there to form 
 the road, and leaving in their place a deposit of mud, it would be 
 absurd to require the parish to do repairs, which, from the nature of 
 things, must always be ineffectual, (v) And in the same case the 
 same learned judge held that where two parishes are separated by a 
 river, the presumption is that the boundary line is the middle line of 
 the channel, (v) 
 
 But though the parish is bound prima facie, and of common right, 
 to repair the highways within it, yet a particular subdivision of a 
 parish, or particular individuals, may be liable to relieve them from 
 that onus, by reason of prescription, or the inclosure of the land in 
 which the highway lies. (10) 
 
 Thus the inhabitants of a district, township, or other division of a 
 parish, may be bound to repair a highway by prescription : and it is 
 said, that a corporation aggregate may be charged by a general pre- 
 scription that it ought and hath used to do it, without showing that 
 it used to do so in respect of the tenure of certain lands, or for any 
 other consideration ; because such a corporation never dies, and, there- 
 fore, if it were ever bound to such a duty, it must continue to be so. (x) 
 But it is said, that such a general prescription is not sufficient to 
 charge a private person ; because no man is bound to do a thing 
 which his ancestors have done, unless it be for some special reason ; 
 as having lands descended to him holden by such service, &c. (//) 
 And a man cannot be liable to repairs merely as lord of a manor, 
 though it is stated that the lords have repaired it from time whereof, 
 &c. (z) This applies to individual persons only, and not to an aggre- 
 gate of persons who compose the inhabitants of a district or division 
 in a parish or township in which the road is situate, (a) But it has 
 been holden that where a parish is charged with the reparation of a 
 highway, lying in aliend parochid, a consideration must lie stated. 
 To an indictment against a parish for not repairing a highway lying 
 within it, a plea that the inhabitants of another parish ' have repaired, 
 and been used and accustomed to repair, and of right ought to have 
 repaired.' was held ill, and it was held that the plea ought to have 
 shown a consideration. Holroyd, J., at the conclusion of his judg- 
 ment, said, ' I say nothing as to the form of pleading where the high- 
 way lies within a township or division of a parish which is charged 
 with the repairs.' (b) 
 
 (v) R. v. Landulph, 1 M. & Rob. 393. (a) R. v. Ecelesfield, 1 B. & A. 348. 
 
 (w) As to highways repaired by parties (b) R. v. St. Giles, Cambridge, 5 M & 
 
 rationc tcnurce, being made repairable by the S. 260. And see R. v. Machynlleth, post, 
 
 parish, see 5 & 6 Will. 4, c. 50, s. 62, 25 & p. 802. Upon an indictment against a town- 
 
 26 Vict. c. 61, ss. 34 & 35. ship for the non-repair of a highway within 
 
 (x) 1 Hawk. P. C. c. 76, s. 8. Bac. Abr. it, in defence it was proved that the way had 
 
 tit. Highways (F.). for many years past been repaired by another 
 
 (y) Id. ibid. township, but it was contended that the 
 
 (s) Lord Raym. 792, 804. It should be liability to repair could not be fixed on the 
 
 laid ratione tcnurce of the demesnes of the latter township without showing some con- 
 
 manor. sideration, and no evidence of this kind was
 
 800 Liability to Repair. [book ii. 
 
 To an indictment against the inhabitants of the parish of A. for the 
 nonrepair of a highway within the parish, the inhabitants pleaded 
 that the inhabitants of the parish of G., from time immemorial, and 
 in consideration of levying and receiving certain rates in respect of 
 certain lands in the parish of A., adjacent to the highway, had re- 
 paired, and ought to repair, the highway so often as there should lie 
 occasion. Beplicatimi, that the said agreement in the plea mentioned 
 was duly determined by notice in that behalf. Held, on demurrer to 
 the replication, that the plea was bad, since the alleged consideration 
 was insufficient to support the liability of the parish of G., because it 
 could not be enforced, and because it could not from its nature be 
 immemorial, and the repairs must have been done by the parish of G., 
 by virtue of some arrangement between the two parishes, which might 
 be, and had been, put an end to. (c) 
 
 And where the inhabitants of a county pleaded that the inhabi- 
 tants of a particular township had immemorially repaired the highway 
 at the end of a county bridge, situate within the township, the Court 
 held, that it was not necessary to state any consideration for such 
 prescription, (d) 
 
 Where to an indictment against a parish for not repairing a high- 
 way the defendants pleaded that the parish had immemorially been 
 divided into five townships, and that each of them had immemorially 
 repaired all the highways within it that would otherwise be repair- 
 able by the parish, and that the highway indicted was situated within 
 one of the townships, and ought to be repaired by it ; the Court of 
 Queen's Bench held that evidence that the four other townships had 
 immemorially repaired their own highways, that no surveyor of high- 
 ways had ever been appointed for the parish, and that the township 
 in question had repaired a highway lately formed within it, was evi- 
 dence upon which the jury might find that the township in ques- 
 tion was liable to repair all highways within it, and that it was not 
 necessary to prove that there were or had been any ancient highways 
 within it. (c) 
 
 Where an extra-parochial and uninhabited district was divided into 
 seven towmships by certain Acts of Parliament, it w T as held that one 
 of the townships was not liable to repair a public road situate within 
 it, as the Acts did not expressly impose such liability upon the town- 
 ship, and the origin of everything (including the township and the 
 road itself) being clearly ascertained, no inference could lie raised as 
 to the liability to repair the road by usage or prescription, (f) 
 
 The liability of a township to repair by prescription may be such 
 as to place the township on the same footing as a parish, in respect to 
 
 given ; it was answered that a consideration (d ) R. v. AVest Riding of Yorkshire, 4 B. 
 
 might In- inferred from the fact of repair; & A. 623. 
 
 hut the point was not decided. R. v. Denton, (c) R. v. Barnoldswick, 4 Q. B. 499. 
 
 18 Q. B. 761. Qu. whether the repair be Parke, B., at the trial thought that there 
 
 not evidence that the road is in the township might be a perfectly valid custom in point 
 
 that had repaired. See Ii. v. Gate Fulford, of law that the inhabitants of either town- 
 
 av.tr, p. 784. ship should repair any highways, which from 
 
 (c) R. v. Ashby Folville, 35 L. J. M. C. time to time beeame public. See Freeman 
 
 154. It seems to have been considered in v. Beed, 4 B. & S. 174, and R. v. Ardsley, 
 
 this case that a parish cannot be liable by 3 Q. B. D. 255. 
 
 prescription to repair a highway in another (/) P>. v. Midville, 4 Q. B. 240. R. v. 
 
 parish. Huilson, 2 Str. 909.
 
 chap. xxxn. § ii.] Of Nuisances to Highways. 801 
 
 the roads within its limits. The liahility may be to repair all high- 
 ways within the township, which but for the prescription and usage 
 would have been repairable by the parish at large ; and in such case 
 the township must not only repair immemorial roads, but also any 
 new highway which may have been made within its limits, and which 
 the parish might have been called upon to repair in the absence of 
 any such prescription, (g) Where an indictment against a township 
 for not repairing part of a highway situate within the township, 
 averred that ' the inhabitants of the said township from time whereof 
 the memory, &c, have repaired and amended, and been used and 
 accustomed to repair and amend, and still ought to repair and amend 
 all common and public highways situate within the township used for 
 all the liege subjects of the realm to go, return,' &c. ; after a verdict 
 of guilty it was moved in arrest of judgment that it charged the town- 
 ship with a customary liability to repair all roads within it, whereas 
 it ought to have charged a liability to repair all roads within it, 
 ' which but for the custom would be repairable by the parish.' But 
 the Court of Queen's Bench held that although those words had of 
 late years been introduced, they were not necessary : where they were 
 introduced they put the township prima facie in the same position as 
 a parish ; and if the defendants meant to assert that any individuals 
 were liable to repair the road in question, ratione tenurce or other- 
 wise (if it could be), they must plead that matter specially ; but 
 where those words were omitted and the defendants pleaded not 
 guilty, it became incumbent on the prosecutor to prove that the 
 township was liable to repair all roads within it ; which might be 
 if there were none repairable by individuals : but if the defendants 
 could show that there were any so repairable, they would negative 
 the custom as being laid too largely. It was a question of evidence, 
 and not of pleading ; and in truth the words in question were intro- 
 duced within living memory for the very purpose of avoiding a failure 
 which frequently happened by reason of the custom laid being larger 
 than the evidence warranted. Nevertheless the custom may be laid 
 as in the present indictment, if no roads in the township are repair- 
 able by individuals other than the inhabitants at large, (h) An in- 
 dictment stated, that part of a highway in an extra-parochial hamlet 
 was out of repair, and that the inhabitants of the hamlet ought to 
 repair it. Upon error brought, on the ground that no immemorial 
 obligation, nor any special ground to make them liable, was stated, it 
 was urged that they were liable of common right, and that an extra- 
 parochial place stood in this respect on the footing of a parish : but 
 the Court held, that they could not consider a common-law obligation 
 as attaching upon the inhabitants of the hamlet from necessity, 
 unless it were shown negatively that the hamlet was not parcel of any 
 other district liable to repair its own roads ; and the judgment was 
 reversed, (i) 
 
 The inhabitants of a district cannot be charged ratione tenurce, 
 because unincorporated inhabitants cannot, qua inhabitants, hold 
 
 (g) R. v. Ecclesfield, 1 B. & A. 348. R. (h) R. v. Heage, 2 Q. B. 128. R. v. 
 
 v. Netherthong, 2 B. & A. 179. R. v. Hat- Hatfield, 4 B. & A. 75. 
 field, 4 B. & A. 75. (t) K. v. Kingsmoor, 2 B. & C. 190. 
 
 vol. i. — 51
 
 802 Liability to Repair. [book ii. 
 
 lands ; and a district cannot be charged by prescription alone (with- 
 out a consideration) to repair what is not within such district. The 
 indictment stated that an ancient bridge, in the parishes of M. and P., 
 in the highway there, was out of repair ; and that the inhabitants of 
 the parish of P. and of the town of M. aforesaid, ' from time whereof,' 
 &c, and by reason of the tenure of certain lands in the said parish and 
 town, had repaired and of right ought to repair it. Upon error it was 
 urged that inhabitants as such could not be charged ratione tenura? ; 
 and that as it did not appear that any part of the bridge was in the town- 
 ship of M., the indictment against the township, on the ground of imme- 
 morial obligation, could not be supported ; and the Court being of that 
 opinion the judgment was reversed, (j) Where an indictment alleged 
 that the inhabitants of three townships in a parish were liable to re- 
 pair a public road, it was objected, but without success, that the indict- 
 ment was bad for charging three townships conjointly ; since, if all 
 were liable, it was the separate neglect of each, (k) 
 
 Where lands bound to the repair of a bridge or highway ratione 
 tenure are conveyed to several persons, every one of the grantees, 
 being a tenant of any parcel, is liable to the whole charge, and must 
 have contribution from the others. So where a manor so bound is 
 conveyed to several persons, a tenant of any parcel, either of the 
 demesnes or services, is liable to the whole repair, and may call upon 
 the tenants of the residue to contribute ; and the grantees are charge- 
 able with the repair, though the grantor should convey the lands or 
 manor discharged of the repair ; and the grantees must have their 
 remedy against the grantor. And the reason seems to be, because the 
 whole manor or land, and every part thereof, in the possession of one 
 tenant, being once chargeable with the repair, it shall remain so, not- 
 withstanding any act of the owner. For the law will not suffer him 
 to apportion the charge, and so make the remedy for the public bene- 
 fit more difficult ; or, by alienations to insolvent persons, to render the 
 remedy against such persons quite frustrate. And though such lands 
 or manor come into the hands of the crown, yet the obligation or duty 
 continues : and any person afterwards claiming the whole, or any 
 part of it, under the crown, will be liable to an indictment for not 
 repairing. (/) 
 
 If the owner of lands not inclosed next adjoining to a highway, 
 where the public have the right of going upon the adjoining lands 
 when the highway is out of repair, incloses his lands on both sides, 
 he is bound to make a perfectly good way as long as the inclosure 
 lasts ; (m) and is not excused by showing that he has made the way as 
 good as it was at the time of the inclosure ; because, if it was then 
 defective, the public might have gone upon the adjoining land, (n) 
 
 (i) R. v. Machynlleth, 2 B. & C. 166. combe's case. do. Car. 366. Henn's case, 
 
 (k) R. v. Bishop Auckland, 1 A. & E. Sir W. Jones, 296. Sty. 364. 2 Lord Kami. 
 
 744. 1170. 1 Hawk. P. C. c. 76, s. 6. Bac. 
 
 (I) Note (9) to R. v. Stoughton, 2 Saund. Abr. tit. Highways (F.). R. v. Stoughton, 
 
 159, citing R. v. Duchess of Buccleuch, 1 2 Saund. 160, note (12). And see Steel v. 
 
 Salk. 358. 3 Viner, tit. Apportionment, 5, Prickett, 2 Stark. I!. 469. Arnold v. Hol- 
 
 pl. 9. See K. v. Mizen, 2 M. & Rob. 382. brook, 42 L. J. Q. B. 80. Where such a 
 
 (m) See the 25 k 26 Vict. c. 61, s. 46, road has been so inclosed, and it is insuffi- 
 noticed post, p. 833, where there are district cient, any passenger may break down tin- 
 boards, inclosure and go over the adjoining land ; 3 
 
 {n) 1 Boll. Abr. 390 (B.), pi. 1. Dun- Salk. 182.
 
 chap, xxxii. § ii.] Of Nuisances to Highways. 
 
 803 
 
 So, if there be an old hedge, time out of mind, belonging to A., on 
 the one side of the way, and B. having land lying on the other side, 
 make a new hedge, then B. shall be charged with the whole repair: 
 but if A. make a hedge on the one side of the way, and B. on 
 the other, they shall be chargeable by moieties, (o) A strong opinion, 
 has, however, been expressed that such liability does not accrue where 
 the adjoining land inclosed has not been used for passage before the 
 inclosure. (p) And where such a liability exists, it lies on the occu- 
 pier of the lands inclosed and not on the owner as owner. (q) A 
 person, having made himself liable to repair a highway by reason of 
 inclosure, may relieve himself from the burthen of any further repara- 
 tions by throwing it open again, (r) Thus if a person remove an 
 encroachment, and leave that part of the road which was injured by 
 the encroachment in a perfect state, his liability to repair ratione 
 coarctation^ ceases, is) Where a highway is inclosed under the 
 authority of an Act of Parliament for dividing and inclosing open 
 common fields, the person who incloses is not bound to repair it. (t) 
 
 As to the liability to repair a new road made in pursuance of a writ 
 of ad quod damnum, see Ex parte Vennor, 3 Atk. 771, 2, 1 Hawk. P. 
 C. c. 76, ss. 7, 74, 75. 
 
 The General Turnpike Act, 3 Geo. 4, c. 126, s. 106, enacts, that it 
 
 (o) Bac. Abr. tit. Highways (F.). R. v. 
 Stoughton, 1 Sid. 464. 1 Hawk. P. C. c. 76, 
 s. 7. R. v. Stoughton, 2 Saund. 161, note 
 (12). 
 
 (p) Per Erie, J., and semble per Cromp- 
 ton, J., in R. v. Ramsden, E. B. & E. 949. 
 Where the origin of a road is recent, the 
 circumstances of the dedication, or the user 
 by which the right of road has been acquired, 
 may well exclude any right to go on the ad- 
 joining land ; e. g., where the object of laying 
 out a street is that houses may be built on 
 both sides of it. See the judgment of Cromp- 
 ton, J., ibid. The public had a right to use 
 a footpath across the field of A., but subject 
 to the right of A. to plough it up when he 
 ploughed the rest of the held. He did so 
 plough it up, and having done so, did not 
 set out or mark the line of the path, but left 
 the public to tread it out. The public con- 
 tinued to walk across the Held in the direction 
 in which the path had been, but soon finding 
 the path in a muddy and bad condition, 
 turned out of it, and walked on either side 
 thereof. To prevent them from doing so, 
 A. placed hurdles on the parts upon which 
 the public so walked, leaving a space of about 
 six feet in width where the path had been. 
 The respondent having thrown down the 
 hurdles, an action was brought against him 
 by A. in a county court. The judge having 
 given judgment in favour of the respondent 
 the Court of Queen's Bench reversed that 
 judgment, holding that the respondent could 
 not claim a right to go off the line of the 
 footpath or a right to pull down the hurdles. 
 Arnold v. Holbrook, 42 L. J. Q. B. SO; ct 
 per Blackburn, J., ' I hold that where there 
 is a prescriptive highway over an open com- 
 mon, there would probably be a prescriptive 
 
 right to deviate when the road itself becomes 
 impassable, but I cannot think that there is 
 a right in the public to deviate in such a case 
 as the present, or to traverse the field in 
 directions which they have not before used. 
 I should require an extreme authority to 
 show that where in modern times a man 
 gives a right of way to the public, he also 
 gives a right to deviate from that way, and 
 go over other parts of his land. In this case 
 no such thing is found ; the land has been 
 under cultivation, and there has always been 
 a right to plough the path up. It is impos- 
 sible to suppose that a right was given to 
 deviate from the line of the path, and 
 trample down the corn which was sown 
 upon the land.' 
 
 (q) R. v. Ramsden, supra. In this case 
 the road indicted was set out under an in- 
 closure Act, and the land on each side was 
 allotted under the Act, which authorised 
 the persons to whom the lands were allotted 
 to inclose them ; it is extremely difficult, 
 therefore, to see how any liability could be 
 incurred by making such an inclosure, and 
 equally so to see how the public could have 
 any right to go out of the line of road set 
 out under the Act. In such a case the lights 
 of the public and the liabilities of the owners 
 would seem to depend entirely on the Ait, 
 and yet no notice whatever was taken of it 
 in the case. 
 
 (r) Bac. Abr. Ibid. R. v. Flecknow, 1 
 Burr. 465. 1 Hawk. P. C. c. 76, s. 7. But 
 where the party is charged with the repair- 
 ing ratione tenures, he will be still bound to 
 repair, though he lay the ground open to the 
 highway. 3 Salk. 392. 
 
 (.9) F. v. Skinner, 5 Esp. 219. 
 
 U) R. v. Flecknow, 1 Burr. 465.
 
 804 Liability to Repair. [book II. 
 
 shall be lawful for the trustees or commissioners of any turnpike road, 
 to contract and agree with any person or persons liable to the repair 
 of any part of the road, under the care and management of such trus- 
 tees or commissioners, or of any bridges thereon, by tenure, or other- 
 wise, for the repair thereof, for such term as they shall think proper 
 not exceeding three years ; and to contribute towards the repair of 
 such road or bridges such sum or sums of money as they shall think 
 proper out of the tolls arising on such turnpike road, (u) The Turnpike 
 Act, 4 Geo. 4, c. 95, s. 68, enacts, that where parts of old turnpike 
 roads are widened, altered, diverted, or turned by legal authority, the 
 body corporate and person who were liable to the repair of the old 
 road shall be liable to the repair of the new, or so much thereof as 
 shall be equal to the burthen and expense of repairing such old road 
 from which they were exonerated by so altering the same. And if 
 the several parties interested cannot agree, two justices are empowered 
 in the manner therein mentioned to view and settle the same ; and to 
 fix a gross sum or annual sum, to be paid by the body corporate or 
 person towards the repair of the new road, with such consent and in 
 such manner as is therein mentioned. But when a highway which 
 was repairable ratione tenurce was converted by trustees under a Turn- 
 pike Act into a macadamized road, and was diverted and straightened, 
 it was held that the original subject of repair had been destroyed and 
 that the liability to repair ratione tenure had ceased, (v) 
 
 The 4 Geo. 4, c. 95 ; s. 68, applies to parishes as well as to indi- 
 viduals. Where, therefore, disputes having arisen between two par- 
 ishes as to the proportion of a turnpike road which each was bound 
 to repair after it had been diverted by trustees, two justices made an 
 order determining the proportions each parish was to repair ; it was 
 held that each parish was liable to repair the part so determined, (w) 
 
 The general statutes, making provision for repairing highways, were 
 repealed and reduced into one Act : namely, the 5 & 6 Will. 4, c. 50, 
 and this Act has been altered and amended by the Highway Acts, 
 noticed post, pp. 827 et seq. There are also turnpike Acts, inclosure 
 Acts, and other statutes, both of a public and private nature, which 
 relate to the repairs and management of the roads in particular places 
 and districts. But these Acts, and especially the general statutes, are 
 of great length, and branch out into a variety of clauses, a detail of 
 which would not be consistent with the proposed limits of this work. 
 It may, however, be useful to notice a few of the decided points which 
 relate to their construction. 
 
 It is no excuse for parishioners, being indicted at common law for 
 not repairing the highways, that they have done their full work 
 required by statute ; for the statutes, being made in the affirma- 
 tive, do not abrogate any provision of this kind by the common 
 law. (x) 
 
 If trustees under a road Act turn a road through an inclosure, and 
 
 (u) As to power of an urban authority to (w) R. v. Barton, 11 A. & E. 343 ; 3 P. & 
 
 enter into agreements with turnpike trustees D. 190. Qucere, whether the Act applies 
 
 as to repairs, &e., of roads under the Public where a parish is liable to repair one side of 
 
 Health Act 1875, see s. 148 of the Act, post, a road, and an individual the other. 
 p. 519. (x) 1 Hawk. P. C. c. 76, s. 43. Bac. 
 
 (v) R. v. Barker, 25 Q. B. D. 213. Heath v. Abr. tit. Highways (G. ). 
 V. T eaverham (Overseers), (1894), 2 Q. B. 108.
 
 chap. xxxn. § ii.] Of Nuisances to Highivays. 805 
 
 make the fences at their own expense, and repair them for several 
 years, they cannot be compelled to continue such repairs, unless there 
 be a special provision in the Act to that effect, (y) 
 
 Where an indictment alleged in the usual way that the liege sub- 
 jects could not pass and repass as they were wont and accustomed to 
 do, and it appeared that there were precipices on the sides of the 
 road, and no fences or guards to protect the passengers from such 
 precipices, but there was no evidence of there having been any fences 
 before, except that some had been put up after a former indictment; 
 it was held that evidence of the want of fences was not admissible, 
 for the public were in no worse a situation than they were wont and 
 accustomed to be before, on account of the want of fences, (z) So 
 where an open ditch or sewer, which ran along the side of a highway, 
 had existed from time immemorial, and was a tidal stream, and the 
 commissioners of sewers had from time to time cleansed it, but had 
 never put up any fence to it ; there had formerly been a wooden 
 fence, but it had been permitted to go to decay, and it did not appear 
 by whom it was erected ; it was held that the commissioners were 
 under no obligation to protect the highway : for this was an ancient 
 sewer, which had existed with the highway time out of mind, and 
 therefore the public had only a right to the highway subject to the 
 sewer, (a) It seems that a parish cannot be indicted for not cleansing 
 the ditches by the side of a highway, (b) 
 
 It has been held that a turnpike Act, giving directions for repair- 
 ing the road to and from a town, excludes the town, (c) The town 
 had, lately before the Act was passed, been paved by the inhabitants, 
 and it was kept in repair by them, and in several parts of the Act 
 the roads were described as leading from, to, and through, particular 
 towns ; but when it mentioned the town in question, it only said, to 
 and from the town, omitting the word 'through.' (d) 
 
 So upon an indictment for illegally erecting a turnpike gate across 
 a road leading ' from the town of Cheltenham to a place called 
 Hewlett's Hill,' it was held that the town was excluded, (e) So 
 where an indictment alleged a road to lead ' from and through the 
 town of Upton/ towards the parish of Great Malvern, it was held 
 that the town was thereby excluded. (/) So where an indictment 
 charged that the defendant erected a gate across a certain road 
 
 (y) R v. The Com. of the Llandilo Dis- itants may be fairly said to dwell together : 
 
 trict, 2 T. R. 232. R. v. Cottle, 16 Q. B. 412 ; or a congregation 
 
 (z) R. v. Whitney, 7 C. & P. 208. J. A. of inhabited houses so near to each other that 
 
 Park, J. they may reasonably be said to be continuous, 
 
 (a) Cornwell v. Metropolitan Commis- and the term will include a space of open 
 sioners of Sewers, 10 Exc. 771. ground surrounded by continuous houses, 
 
 (b) R. v. Upton on Severn, MSS. C. S. G. and it should seem also all open spaces occu- 
 Wor. Sum. Ass. 1833. Tindal, C. J. But pied as mere accessories to such houses, 
 see 5 & 6 Will. 4, c. 50, s. 67, which gives although not so surrounded. Elliott v. S. 
 the surveyor power to cleanse all ditches, Devon R. Co., 2 Exc. R. 725. 
 
 &c, he deems necessary, in and through any (d) Hammond v. Brewer, 1 Burr. R. 376 ; 
 
 lands or grounds adjoining, or lying near to and see R. v. Gamlingay, post, p. 811 ; and 
 
 any highway. See the Public Health Act, R. v. Harrow, 4 Burr. 2091. 
 1875. (e) R. v. Fisher, 8 C. & P. 612. Patte- 
 
 (c) Hammond v. Brewer, 1 Burr. R. 376. son, J. 
 
 The word ' town ' in a local Act may be un- (/) R. v. Upton on Severn, 6 C. & P. 132 
 
 derstood in a popular sense, as a congregation Tindal, C. J. MSS. C. S. G S. C. 
 of houses so reasonably near that the inhab-
 
 806 Liability to Repair. [book ii. 
 
 ' leading from the township of Detton ' ' unto the town of Cleobury 
 Mortimer,' and it appeared that the gate was erected across that part 
 of the highway which was situate in the township of Detton ; Cole- 
 ridge, J., held that the indictment was not supported, as the words 
 ' from ' and ' to ' excluded the termini, (g) 
 
 The commissioners appointed by the 6 Geo. 3, c. 78 (an Act for 
 dividing and inclosing certain lands in the parish of Cottingham) 
 which enacted, that the public roads to be set out by them should 
 be repaired in such manner as other public roads are by law to be 
 repaired, and that the private roads should be repaired by such 
 person or persons as they should award, had no power to impose on 
 the parish at large the burden of repairing any of the private roads 
 set out in pursuance of the Act. (h) 
 
 And where under a similar Act the commissioners had made an 
 order in 1802, that the private ways set out by them should be re- 
 paired by the inhabitants, and one of them had been used by the 
 public in every way, and repaired by the parish up to 1825, when 
 the inhabitants having, as was alleged, found out that they were not 
 bound to obey the order, discontinued the repairs, and evidence was 
 ottered to show that the parish had been acting under a mistake ; it 
 was held that the inhabitants were not bound to obey the order, but 
 that that was not conclusive of the case. In ordinary cases there 
 was an owner of the land, but here there was none, except as directed 
 by the Act ; for the presumption that roads are the property of the 
 adjacent owners (which is founded on the supposition that the roads 
 originally passed over the lands of the owners, and therefore they 
 still belong ad medium filurn vios to the adjacent owners) does not 
 hold where roads are made under an inclosure Act. The case turns 
 on this question only, whether or no the parish repaired under a 
 mistaken notion of liability. If they acted on a voluntary disposition 
 on their part to repair a road, which was useful to a large class of 
 persons, and for the convenience of the public, they ought to be 
 convicted. If it was a mistake, they ought to be acquitted, (i) 
 
 Upon an indictment against the parish of Haslingfield, for not 
 repairing a highway, an award made by commissioners under an 
 inclosure Act, which awarded the highway to be in a different parish, 
 was holden not to be admissible evidence for the defendants, without 
 showing that the commissioners had given notices which the Act 
 required to be given previously to the boundaries having been ascer- 
 tained by them ; it appeared that the usage had not been pursuant 
 to the award ; the defendants had since the award, as well as before, 
 repaired the highway. The learned judge who tried this case reported 
 that he should have had no difficulty in admitting the award, if the 
 usage had been pursuant to it, and presuming that the proper 
 notices had been given. (_/') 
 
 (ff) R. v. Botfield, C. & Mars. 151. such a case the soil be not in the lord of 
 
 (h) R. v. Cottingham, 6 T. R. 20. See the manor ; it was so before the inclosure, 
 
 R. v. Wright, 3 B. & Ad. 681. Ante, p. 768. and it would seem so to continue, unless 
 
 See R. v. Richards, 8 T. R. 634, that a dis- there were an express provision vesting it 
 
 obedience to repair a private, road is not elsewhere. C. S. G. See accordingly, Poole 
 
 indictable, but an action lies by the party v. Huskinson, 11 M. & W. 827, and Johnson 
 
 injured by the non-repair. v. Hodgson, 8 East, R. 38. 
 
 (i) R. v. Edmonton, 1 M. & Rob. 24. (j) R. v. Haslingfield, 2 M. & S. 558. 
 
 Lord Tenterden, C. J. Quaere, whether in See the cases, ante, pp. 783, 784.
 
 chap, xxxii. § II,] Of Nuisances to Highivays. 807 
 
 Under the Metropolis Local Management Act, 1855 (18 & 19 Vict, 
 c. 120), s. 105, the vestry or district board of a parish or district, after 
 having once compelled the owners of the houses forming a new street, 
 to pay the cost of providing and laying the pavement, are bound for 
 the future to keep it in repair, and this obligation may be enforced 
 by mandamus : The H. Board of Works acting under the powers of 
 the Metropolis Local Management Act, 1855 (18 & 19 Vict. c. 120), 
 s. 105, paved and flagged a new street, charging the expense on the 
 adjoining owners. The Board afterwards neglected to repair the road 
 on the ground that a barrier had been erected upon it by the owner 
 of the soil. Held, that the Board, having exercised their power to 
 pave a new street at the expense of the adjoining owners, were bound 
 to keep it in repair, and that the obstruction by the owner of the 
 soil did not exonerate them from the performance of such duty, (k) 
 
 We may now shortly consider the modes of proceeding by which 
 persons guilty of these nuisances to highways may be prosecuted. 
 
 Nuisances or annoyances to highways, whether positive, in the 
 nature of actual obstructions, or negative, by the defect of proper 
 reparations, may be made the subject of indictment, which is the 
 more usual course of proceeding. And formerly justices of assize 
 and of the peace might have presented highways which were out of 
 repair, but now by the 5 & 6 Will. 4, c. 50, s. 99, it is not lawful ' to 
 take or commence any legal proceeding by presentment against the 
 inhabitants of any parish, or other person, on account of any highway 
 or turnpike road being out of repair.' (I) 
 
 A new mode of compelling the repairs of highways (m) has been in- 
 troduced by the 5 & 6 Will. 4, c. 50, s. 94, which enacts, that * if any 
 highway (n) is out of repair, or is not well and sufficiently repaired 
 and amended, and information thereof, on the oath of one credible 
 witness, is given to any justice of the peace, it shall and may be law- 
 ful for such justice, and he is hereby authorized and required to issue 
 a summons requiring the surveyor (o) of the parish, or other person 
 or body politic or corporate chargeable with such repairs, to appear 
 before the justices at some special sessions for the highways in the 
 said summons mentioned, to be held within the division in which the 
 said highway may be situate ; and the said justices shall either appoint 
 some competent person to view the same, and report thereon to the 
 justices in special sessions assembled, on a certain day and place to 
 be then and there fixed, at which the said surveyor of the highways 
 or other party as aforesaid, shall be directed to attend, or the said 
 justices shall fix a day whereon they or any two of them shall attend 
 to view the- said highway ; and if to the justices at special sessions, 
 on the day and at the place so fixed as aforesaid, it shall appear, either 
 on the report of the said person so appointed by them to view, or on 
 
 (k) R. v. The Hackney Board of Works, eases where the way is admittedly a public 
 
 42 L. J. M. C. 151. highway. R. v. Heanor, 6 Q. B. 748. R. 
 
 (I) See R. v. Mawgan, 8 A. & E. 496. v. Somersetshire, 3 Law T. 316. See R. v. 
 
 A presentment and indictment differ, 2 Inst. Johnson, post, p. 808. R. v. Farrer, 35 L. 
 
 739. Comb. 225. J. M. C. 211. 
 
 (m) The 25 &26 Vict. c. 61, s. 18, noticed (o) As to the powers of surveyors of high- 
 
 post, p. 827, provides for those cases where ways being vested in urban authority under 
 
 district boards are established under that the Public Health Act 1875, sees. 144, post, 
 
 Act. p. 834. 
 
 (it) It seems this section only applies to
 
 808 Indictment J "or Non- Repair, [book ii. 
 
 the view of such justices, that the said highway is not in a state of 
 thorough and effectual repair, they the said justices at such last- 
 mentioned special sessions shall (p) convict the said surveyor or 
 other party liable to the repair of the said highway in any penalty 
 not exceeding live pounds, and shall make an order on the said 
 surveyor, or other person or bodies politic or corporate liable to repair 
 such highway, by which order they shall limit and appoint a time 
 for the repairing of the same; and in default of such repairs being 
 effectually made within the time so limited, the said surveyor, or such 
 other person or body politic or corporate as aforesaid, shall forfeit 
 and pay to some person to be named and appointed in a second order, 
 a sum of money to be therein stated, and which shall be equal in 
 amount to the sum which the said justices shall, on the evidence 
 produced before them, judge requisite for repairing such highway, 
 which money shall be recoverable in the same manner as any forfei- 
 ture is recoverable under this Act, and such money when recovered 
 shall be applied to the repair of such highway, and in case more parties 
 than one are bound to repair any such highway, the said justices 
 shall direct in their said order what proportion shall be paid by each 
 of the said parties ; provided, that if the said highway so out of repair 
 is a part of the turnpike road, the said justices shall (q) summon the 
 treasurer or surveyor or other officer of such turnpike road, and the 
 order herein directed to be made shall be made on such treasurer or 
 surveyor or other officer as aforesaid, and the money therein stated shall 
 be recoverable as aforesaid ; provided nevertheless that the said jus- 
 tices shall not have power to make such order as aforesaid in any 
 case where the duty or obligation of repairing the said highway comes 
 in question.' 
 
 Sec. 95. (r) ' If on the hearing of any such summons respecting the 
 repair of any highway the duty or obligation of such repairs is denied 
 by the surveyor on behalf of the inhabitants of the parish, or by any 
 other party charged therewith, it shall then be lawful for such justices, 
 and they are hereby required (s) to direct a bill of indictment to be 
 preferred, and the necessary witnesses in support thereof to be sub- 
 poenaed, at the next assizes to be holden in and for the said county, 
 or at the next general quarter sessions of the peace for the county, 
 riding, division, or place wherein such highway shall be, against 
 the inhabitants of the parish or the party to be named in such 
 order, for suffering and permitting the said highway to be out of 
 repair ; and the costs of such prosecution shall (t) be directed by the 
 judge of assize before whom the said indictment is tried, or by the 
 justices at such quarter sessions, to be paid out of the rate made and 
 levied in pursuance of this Act in the parish in which such highway 
 
 (p) This is not compulsory, but the jus- (s) If the liability to repair is denied, on 
 tices may exercise a discretion whether they the ground that the alleged highway is not a 
 will convict. R. v. Lord Radnor, 8 Dow. highway, the justices cannot proceed to make 
 P. C. 717. an order under this section that an indict- 
 (q) See R. v. Trafford, 5 E. & B. 967. ment be preferred, without making any 
 (r) This section is in force in South inquiry as to whether the road be a high- 
 Wales notwithstanding the 23 & 24 Vict. way. R. v. Johnson, 34 L. J. M. C. 85. 
 c. 68. R. v. James, 3 B. & S. 901. See See ante, p. 807. 
 the 25 & 26 Vict. c. 61, s. 19, noticed post, (t) See post, p. 822. 
 p. 828, where there is a district board.
 
 chap. xxxn. § ii.] Of Nuisances to Highways. 809 
 
 shall be situate ; provided nevertheless that it shall be lawful for the 
 party against whom such indictment shall be so preferred at the 
 quarter sessions (u) as aforesaid to remove such indictment by cer- 
 tiorari or otherwise into his Majesty's Court of King's Bench.' 
 
 By the Highways Act 1878 (41 & 42 Vict, c, 77) (v) s. 10, which gives 
 power to a county authority to enforce the performance of their duty 
 by a highway authority by making an order upon them, it is provided 
 ' If the county authority decide to submit the question to a jury they 
 shall direct a bill of indictment to be preferred to the next practicable 
 assizes to be holden in and for their county, with a view to try the 
 liability of the defaulting authority to repair the highway. Until 
 the trial of the indictment is concluded the order of the county 
 authority shall be suspended. On the conclusion of the trial, if the 
 jury find the defendants guilty, the order of the county authority 
 shall forthwith be deemed to come into force ; but if the jury acquit 
 the defendants the order of the county authority shall forthwith 
 become void. The costs of the indictment and of the proceedings 
 consequent thereon shall be paid by such parties to the proceedings 
 as the court before whom the case is tried may direct.' 
 
 Another mode of proceeding is by information, which may be 
 granted by the Court of Queen's Bench at their discretion. But they 
 will not grant an information to compel a parish to repair a highway 
 which is not much used ; and when it appears that another highway, 
 equally convenient to the public, is in good repair. And indeed they 
 never give leave to file an information for not repairing a highway, 
 unless it appear that the grand jury have been guilty of gross misbe- 
 haviour in not finding a bill; and they refuse it for this reason, that 
 the fine set on conviction upon an information cannot be expended 
 in the repair of the highway, whereas on an indictment it is always 
 so expended, (iv) But it has been granted against the inhabitants of 
 a parish where it was shown that a bill of indictment had been 
 thrown out by the grand jury, and that two of the grand jury were 
 proprietors of land in the parish, and had taken an active part in 
 opposing the finding of the indictment, (x) 
 
 A mandamus will not be granted to repair a highway, (y) 
 
 Though it is often stated in indictments for nuisances (z) to highways, 
 that ' from time whereof the memory of man is not to the contrary,' 
 or, ' from time immemorial,' there was and is a common and ancient 
 Queen's highway, yet it is not necessary to do so ; for it is sufficient 
 to state in a compendious manner that it is a highway, (a) And if an 
 indictment against a parish unnecessarily allege the road to have 
 existed ' from time whereof the memory of man runneth not to the 
 
 (u) An indictment found at the assizes to treat particularly of the forms of the plead- 
 
 may also be removed by the defendants. R. ings, though some of the prominent points 
 
 v. Sandon, 3 E. & B. 547. concerning them are occasionally mentioned. 
 
 (v) See post, p. 836. For indictments, pleas, &c, relating to nui- 
 
 (w) Bac. Abr. tit. Highways (H.). R. v. sances to highways the reader is referred to 
 
 Steyning, Say. 92. the Cro. Circ. Comp. (8th edit.) 301. •', 
 
 (x) R. v. Upton St. Leonards, 10 Q. B. Wentw. 405. 2 Stark. 664. 3 Chit. Cr. L. 
 
 827. 576, 607 ; and the notes to R. v. Stoughton. 
 
 (y) R. v. The Trustee of the Oxford and 2 Saund. 157 et seq. 
 Witney Turnpike Roads, 12 A. & E. 427. (a) Aspindall v. Brown, 3 T. R. 265. 
 
 (z) It is not within the scope of this work
 
 810 Indictment for Non-Repair. [book ii. 
 
 contrary,' and it appear that part of the highway was made within 
 living memory, this is no variance ; for in an indictment against a 
 parish it is not material whether the way be immemorial or not, as 
 the instant it becomes a public way the parish is liable, (b) But it 
 is otherwise where an immemorial custom is necessary to raise the 
 liability. Where, therefore, an indictment for non-repair of a high- 
 way stated that the inhabitants of a tithing from time immemorial 
 had been used and accustomed to repair the said highway, and the 
 way in question had been set out as a private road and a drift-way 
 under an inclosure Act in 1784, for the use of the adjoining owners, 
 who were directed to repair it ; and the award under a power in the 
 Act extinguished all ways, both public and private, not set out in it. 
 The way had been publicly used before the inclosure, and since had 
 been repaired occasionally by the tithing, and been used to a great 
 extent by the public. It was objected, that whatever might be the 
 facts as to the use and repair by the tithing before and since the inclo- 
 sure, the award extinguished the road as a public way for some time 
 at least, and therefore the allegation of immemorial user and liability 
 to repair was not proved ; and Maule, J., held that the indictment 
 clearly failed on the facts, (c) And though it is usual to state the 
 termini of the highway, it is said not to be necessary; on the ground 
 that a public highway is intended to go through all the realm, and to 
 lead from sea to sea. (d) But if the termini are stated, they must be 
 substantially proved, according to the statement, (e) Thus, where a 
 highway leading from A. to C. not passing through B., though com- 
 municating with it by means of a cross-road, was described as a road 
 leading from A. to B. and from thence to C, the variance was held to 
 be fatal. (/) An indictment describing a footpath as leading from A. 
 towards and unto the parish church, is satisfied by proof of a public 
 way leading from A. to the parish church, though turning backwards 
 between A. and the church at an acute angle, and though the part 
 from A. to the angle be an immemorial way, and the part from the 
 angle to the church be recently dedicated, (g) So where an indict- 
 ment alleged that the highway led from T. to E., and it appeared that 
 a person travelling from T. to E. on the way described would pass 
 into a turnpike road, travel a short distance along that road, and 
 then turn off into a distinct road which led to E., it was objected that 
 the portion of the highway between the turnpike road and E. was not 
 part of a road from T. to E., inasmuch as a person leaving T. came 
 into and travelled along a distinct line of turnpike road, before he 
 entered upon the highway in question, which immediately led to E. ; 
 but the Court of Queen's Bench held that the way was properly 
 described, as it was the nearest between T. and E., and a turnpike 
 road is itself a parish road, (h) 
 
 (b) R. v. TurweBton, 16 Q. B. 109. (/)R. v. Great Canfield, cor. Ellen- 
 
 (c) R. v. Westmark, 2 M. & Rob. 305. borough, C. J., 6 Esp. C. 136. 
 
 (d) R. v. Hammond, Str. 44. 10 Mod. (g) R. v. Marchioness of Downshire, 4 A. 
 382. Halsell's case, Nov, 90. Latch. 183. & E. 232 ; 5 N. & M. 662. 
 
 R. v. St. Weonards, 6 C. & P. 582. R. v. (h) R. v. Turweston, 16 Q. B. 109. So 
 
 Neale, 3 Keb. 89. Rouse v. Bardin, 1 H. where part is an ancient highway, and part 
 
 Black. 351 ; but see Lord Loughborough's of recent date, it may well be described as a 
 
 judgment, who differed. highway. R. v. Marchioness of Downshire, 
 
 (e) Rouse i\ Bardin, 1 H. Black. 351. R. supra. See R. v. Steventon, 1 C. & K. 55. 
 v. St. Weonards, 6 C. & P. 582. Erskine, J.
 
 chap, xxxii. § ii.] Of Nuisances to Highways. 811 
 
 As to the power of amendment in case of variance between the 
 indictment and the proof, see ante, p. 53. 
 
 But the termini of the part out of repair are not material. Where, 
 therefore, the unrepaired part of a highway was described as leading 
 out of a highway, ' at or near a place called Parkside,' and the place 
 was Parkgate ; it was held that this was immaterial, (i) 
 
 In an indictment against a parish, charging them on their common 
 law liability to repair, the highway must be alleged in the indictment 
 to lie in the parish indicted; and if it be not so alleged, the indictment 
 is erroneous, and judgment will be reversed, (j) Such indictment should 
 also state that the way is a highway and that it is out of repair. Where 
 an indictment against the parish of Gamlingay stated that there was a 
 highway leading from the parish of Hartley St. George towards and 
 unto the parish of Gamlingay, and that a certain part of the said high- 
 way situate in the said parish of Gamlingay w r as out of repair, it was 
 moved in arrest of judgment that no part of the road, as described, lay 
 in Gamlingay ; and the Court held the objection fatal. (&) So where 
 an indictment against the parish of Upton on Severn stated that there 
 was a highway ' from and through the town of Upton on Severn,' and 
 there was no express averment that the part out of repair was in the 
 parish, it was held bad. (7) Where an indictment charged that the 
 defendant, at the township of W., upon a highway there leading from a 
 highway leading from the village of W. towards the parish church of C, 
 towards and unto a highway leading from the said village of W. towards 
 and unto the township of L. W., by a certain wall there extending into 
 the said highway unlawfully encroached, it was held that the words 
 ' there ' and ' said' could only be referred to the first-mentioned highway, 
 and that the indictment was sufficient, (m) Where the indictment is 
 against a particular person, charging him with the repair of a high- 
 way in respect of certain lands, it seems that the occupier, and not 
 the owner, is the proper person against whom the indictment should 
 be brought ; on the ground that the public have no means of knowing 
 who is the owner of the lands charged with the repair : and it does 
 not seem to be material what estate the occupier has in the lands 
 liable, (n) The averment of obligation to repair, in an indictment 
 against a person for not repairing by reason of tenure, will, it seems, 
 be sufficient, if it state that the defendant ought to repair by reason 
 of the tenure of his lands, without adding that those who held 
 the lands for the time being have immemorially repaired ; a prescrip- 
 tion being implied in the estate of inheritance in the land, (o) But it 
 is not sufficient to state that the party is chargeable by being owner 
 and proprietor of the property subject to the charge, (p) But an 
 
 (i) R. v. Waverton, 17 Q. B. 562. include as well as exclude that place. See 
 
 (j) R. v. Hartford, Covvp. 111. See R. Fry v. Whittle, 6 Exch. R. 411. 
 
 v. Bishop Auckland, 1 A. & E. 746. "(/) R. v. Upton on Severn, 6 C. & P. 
 
 (k) R. v. Gamlingay, 3 T. R. 513. And 132. Tindal, C. J. MSS. C. S. G. 
 
 see Hammond v. Brewer, ante, p. 805, and (m) R. v. Wright, 1 A. & E. 434. 
 
 Rose v. Barden, 1 H. Black. 356, Lord (n) R. v. Watts, 1 Salk. 357. R v. 
 
 Loughborough's judgment. R. v. Knight, 7 Bucknell, 7 Mod. 55. R. v. Sutton, 3 A. & 
 
 B. & C. 413; 1 M. & R. 217. Lord Tenterden, E. 597. R. v. Barker, 25 Q. B. D. 213. 
 
 C. J., doubted the propriety of the decision (o) R. v. Stoughton, 2 Saund. 158 c?. 
 in R. v. Gamlingay, saying that, in common note (9). 1 Chit. C. L. 475, et seq. 
 parlance, the words 'leading from a place,' (/)) R. v. Kerrison, 1 M. & S. 435. See 
 
 Russell v. Shenton, 3 Q R. 449.
 
 812 Indictment for Non-Repair. [book ii. 
 
 indictment against a particular part of a parish, such as a district, 
 township, division, or the like, for not repairing a highway in the 
 parish, stating that the inhabitants of the district from time imme- 
 morial ought to repair and amend it, is erroneous ; it should state that 
 the inhabitants of such district from time whereof, &c. have used and 
 been accustomed, and of right ought to repair and amend it : for the 
 inhabitants of a particular division of a parish not being hound to 
 repair by common law, and their obligation arising necessarily only 
 from custom or prescription, the indictment ought to show such 
 custom, prescription, or reason of their obligation, (q) 
 
 Where the first count of an indictment alleged that there was a 
 highway in the county of C, and that 'a certain part of the said high- 
 way situate, &c, in the township of W. in the parish of W. in the 
 county aforesaid (describing it, and stating its length and breadth) 
 was very ruinous,' &c. : and the second count alleged an immemorial 
 usage for the inhabitants of the said township to amend so many of 
 the highways, situate in the said township, as would otherwise be 
 repairable by the parish at large, and that ' the said part of the same 
 common highway hereinbefore mentioned to be ruinous, &c, as afore- 
 said ' was a highway, which but for the said usage would be repairable 
 by the parish at large ; and that by reason of the premises the inhabi- 
 tants of the said township ought to have repaired ' the same part of 
 the said common highway so being ruinous, &c, as aforesaid ; ' the 
 jury having found the defendants not guilty on the first count, but 
 guilty on the second, it was objected, in arrest of judgment, that the 
 second count was bad on the ground that it did not contain any suffi- 
 cient averment that the highway was in the township, or out of 
 repair ; but the Court of Queen's Bench held that the words ' so being 
 ruinous, &c, as aforesaid,' were a clear and specific reference to the 
 first count, which contained a formal allegation that this part of the 
 highway was out of repair, and there were many authorities to show 
 that one count of an indictment might refer to another, and that 
 under snch circumstances the maxim applies verba relata inesse viden- 
 tur. And as to the objection, that the second count did not show that 
 the part indicted was situate in the township of W. ; it had been de- 
 termined that any qualities or adjuncts averred in one count to belong 
 to any subject, if they are separate from it, shall not be supposed to 
 be alleged as belonging to it in a subsequent count, which merely 
 introduces it by reference as the same subject ' before mentioned.' (r) 
 But the local situation of the part of the highway described must 
 necessarily and invariably belong to it, and if once described as being 
 in a particular township, when there is afterwards enough to identify 
 it as being what is so described, a repetition of the allegation that it is 
 within the township is not strictly necessary, (s) 
 
 A highway may be described as a common highway for carts, 
 carriages, &c, although it has always been arched over, provided it 
 be capable of being used by all ordinary carriages and notwithstand- 
 
 (q) Ante, p. 811, note (o). R. v. Brou«h- (r) See R. v. Martin, 9 C. & P. 215 ; R. 
 
 ton, 5 Burr. 2700. Freem. 522. R. r. v. Waters, 1 Den. C. C. 356. 
 Stoughton, R. v. Sheffield, 2 T. R. 111. (s) R. v. Waverton, 2 Den. C. C. 340, 
 
 17 Q. B. 562.
 
 chap. xxxn. § ii.] Of Nuisances to Highways. 813 
 
 ing the archway be not sufficiently high to permit road waggons and 
 other carriages of unusual dimensions to pass under it. (t) 
 
 Where an indictment charged the non-repair of a highway for 
 horses, coaches, carts, and carriages, and there was no evidence that 
 any carriages had ever gone the whole length of it, but the road had 
 been repaired by the parish, and persons on horseback had frequently 
 passed along it ; it was held that the defendants could not be con- 
 victed, as there was no count charging that it was a road for 
 horses, (u) And where an indictment stated that there was a pack 
 and prime way between certain specified places, and it appeared that 
 part of that road was a turnpike road, it was held that this was fatal, 
 for the statement in the indictment was matter of description, and 
 must be proved as laid, (v) On an indictment for obstructing a foot- 
 way leading from a turnpike road to Gravesend, it appeared that from 
 the turnpike road to the top of a hill the road was a carriage-way, but 
 from thence to Gravesend it was a footway, and the obstruction was 
 in the latter part, and it was held that, assuming this to be a misde- 
 scription, it was amendable under the 14 & 15 Vict. c. 100, s. 1. (w) 
 
 A map made by order of a former lord of a manor in which a way 
 lies, which has been used for more than thirty years by the stewards 
 of the manor, for the purpose of defining the copyholds, and which 
 set out the way in question, but did not describe it as a highway, and 
 set out other ways in a similar manner which were only occupation 
 roads, is not admissible as a declaration by a deceased person as to a 
 public highway ; for the map, if a declaration at all, was only a decla- 
 ration as to the matter for which it had been used, viz., the defining 
 of the copyholds, and the map itself did not describe the way as a 
 highway, (x) 
 
 Where a person, who is bound ratione tenuroe to repair a highway, 
 lives out of the county in which such highway is situate, he may 
 nevertheless be indicted in such county for not repairing it. (y) 
 
 It cannot, under the plea of the general issue, be objected at the 
 trial that the description of the highway in an indictment for the 
 non-repair of it is too indefinite, being equally applicable to several 
 highways, (s) 
 
 When an indictment is against the inhabitants of a parish at large, 
 who, as it has been seen, are bound of common right to repair all the 
 highways lying within it, they may upon the general issue, not guilty, 
 show that the highway is in repair, or that it is not a highway, or 
 that it does not lie within the parish ; for all these are facts which 
 the prosecutor must allege in his indictment, and prove on the plea of 
 not guilty, (a) 
 
 On an indictment for non-repair of a highway it appeared that it 
 
 (t) Ii. v. Lynn, 1 C. & P. 527, tota curia, (x) Pipe v. Fulcher, E. &. E. 111. See 
 
 B. R. R. v. Milton, 1 C. & K. 58. Erskine, J. 
 
 (u) R. v. St. Weonards, 5 C. & P. 579. (y) R. v. Clifton, 5 T. R. 502, 503. 
 
 Parke, B. (z) R. v. Hammersmith, 1 Stark. Rep. 
 
 (v) R. v. St. Weonards, 6 C. & P. 582. 357. Particulars of the roads indicted may 
 
 Alderson, B., and Williams, J. be obtained. See ante., p. 758. 
 
 (w) R. v. Sturge, 3 E. & B. 734. As to (a) R. v. Norwich, 1 Str. 181, et seq. 
 
 amendments at the trial, where there is a R. v. Stoughton, 2 Saund. 158, note (3). 
 variance between the proof and the indict- 
 ment, see ante, p. 53.
 
 814 Indictment. — Plea. [book ii. 
 
 had always been a green road, and was in very bad repair. Patteson, 
 J., told the jury that it was not enough to say that it was as good as 
 ever it was, or as it usually had been ; and that if it were a public 
 road, and the necessities of the public required it, the inhabitants 
 might be bound to convert it from a green road into a hard road ; it 
 was contended that this was a misdirection, that the road was proved 
 to be in as good a state as it had ever been, and that that was an 
 answer to the indictment; but it was held that the direction was 
 right ; and that the degree of repair necessary had reference to the 
 existing use of the road ; if the road was little used, then little repair 
 was necessary ; but if much used, then proportionably more, (b) On 
 an indictment for non-repair of a highway it appeared that the road 
 was an old soft road formed of weald of Kent clay, and had never 
 been repaired with hard substances ; the defence was that the parish 
 was not bound to make the road a hard road, and that they had suffi- 
 ciently repaired it by hacking in the ruts, as had before been the 
 custom. Blackburn, J., told the jury that the parish was not bound 
 to make the road hard, or bring stone or other hard substances to 
 repair the road ; but they were bound in some way, by stone or other 
 hard substances, if necessary, to put the road in such repair as to be 
 reasonably passable for the ordinary traffic of the neighbourhood at 
 all seasons of the year, (c) But it is settled that the parish cannot, 
 upon the general issue, throw the burthen of repairing on particular 
 persons, by prescription or otherwise; but must set forth their dis- 
 charge in a special plea, (d) Where a person is charged with the 
 repairs of a highway or bridge, against common right, he may dis- 
 charge himself upon not guilty to the indictment : and therefore 
 where a particular division of a parish is charged with the repair by 
 prescription, or a particular person by reason of tenure or the like, 
 which are obligations against the common law, they may throw the 
 burthen either on the parish, or even on an individual on the general 
 issue. And the reason seems to be, because upon this issue the prose- 
 cutor is bound to prove that the defendants are chargeable by tenure 
 or prescription, and therefore the defendants may disprove it by oppo- 
 site evidence ; but if they will, though unnecessarily, plead the special 
 matter, it is held not to be enough to say that they ought not to re- 
 pair, but they must go further and show who ought, (e) 
 
 If a parish consisting of several townships be indicted for not 
 repairing a road within it, a plea that each township has im- 
 memorially maintained its own roads must show how much of the 
 road indicted lies in one township, and how much in another ; for 
 it is considered that the parish must know the limits of each town- 
 ship, and is bound to show with certainty the parties liable to 
 repair every part of the highway indicted, and in what right they 
 are so liable. (/) Where to an indictment for non-repair of a road 
 the parish plead specially that particular individuals are liable 
 
 (b) R. v. Henlev, 2 Cox, C. C. 334. (e) R, V. Yarnton, 1 Sid. 140. R. v. 
 
 (c) R. v. High Halden, 1 F. & F. 678. Hornsey, Carth. 213 ; R. v. City of Nor- 
 
 (d) R. v. St. Andrews, 1 Mod. 112. wich, l"Str. 180, et seq. ; R. v. St. Andrews, 
 Anon., 1 Vent. 256. See R. v. St. George, 3 Salk. 183, pi. 3. R. v. Stoughton, 2 
 3 Campb. 222, where there was a public Act Saund. 159 a, note (10). 
 
 of Parliament transferring the liability. (/) R. v. Bridekirk, 11 East, 304.
 
 chap. xxxn. § ii.] Of Nuisances to Highways. 815 
 
 ratio nc tenurce to repair parts of the road indicted, they must accur- 
 ately describe the parts such persons are respectively liable to repair, 
 for they can only discharge themselves by showing precisely who are 
 liable, and for what particular parts of the road. To an indictment 
 against a parish for not repairing a road beginning at the confines 
 of the parish of L. and ending at R, containing in length 2390 yards, 
 the parish pleaded as to part commencing at the confines of the 
 parish of L , and continuing thence onward in length 363 yards or 
 thereabouts, that the same adjoined on the north-east side thereof to 
 certain lands in the occupation of V. as tenant to P., and on the 
 south-west side to certain other lands in the occupation of J. as 
 tenant to the said P., and that the said P., by reason of the tenure 
 of such lands ought to repair such part of the said highway adjoining 
 to the said lands being in length as aforesaid or thereabouts, when 
 and as often as there should be occasion, &c. ; and as to another part 
 commencing at the termination of the said part of the said highway 
 last described, and continuing thence onwards in length 499 yards 
 or thereabouts, that the same on each side thereof adjoined to certain 
 other lands in the occupation of B. as tenant to C, and that C. by 
 reason of his tenure of such lands ought to repair such part of the 
 said highway adjoining to the last-mentioned lands, (g) The replica- 
 tion was that P., C, &c, by reason of their several and respective 
 tenures of the said several lands ought not respectively to repair 
 such part of the said highway respectively as adjoins to the lands 
 in the several and respective tenures of the said P., C, &c, modo et 
 forma. It appeared that on entering the road from the parish of 
 L. the land of P. extended on both sides of the road, but about 
 eighteen yards further on the left than on the right-hand side. 
 Where P.'s land ended C.'s land began on each side of the road, so that 
 for the eighteen yards P.'s land and C.'s were opposite to each other. 
 It was objected that there was a misdescription, for it was stated 
 that P. was bound to repair the whole road and C. the whole road, 
 but the evidence was that there were about eighteen yards in which 
 P. and 0. would be bound to repair ad medium filum vice. It was 
 answered, that the form of the issue, as well as the substance, was, 
 whether persons holding lands were bound to repair the road adjoin- 
 ing to their lands, — that the statement of so many yards ' or there- 
 abouts,' left it quite at large, as much as if it had been alleged under 
 a videlicet ; but it was held that the plea was not proved ; for it was 
 an entire plea which the defendants were bound wholly to prove, 
 and as no part of the plea stated that P. and C. were bound to repair 
 up to the middle of the road there was a variance. (Ji) 
 
 Where a plea to an indictment in the ordinary form against a 
 parish for non-repair of a road, alleged that the road lay within a 
 township, and that the inhabitants of the township had been accus- 
 tomed from time immemorial to repair all highways within the 
 township, which otherwise would be repairable by the parish at large, 
 and that the inhabitants of the parish at large had not been accus- 
 
 (g) The plea proceeded to aver the lia- (h) R. v. Eockfield, Monm. Summer Ass. 
 
 bility of the owners of the adjoining lands 1830. Bosanquet, J. There were similar 
 
 to repair the residue of the roads in a similar variances in the proof as to other parts of 
 
 manner. the road. MSS. C. S. G.
 
 816 Indictment — Plea. [book ii. 
 
 tomed to repair the highways within the township, and that by 
 reason of the premises the township ought to repair the said road, 
 and the replication traversed the custom for the township to repair 
 all highways within it as stated in the plea, and a verdict was found 
 for the defendants; judgment was arrested, because the plea did not 
 aver that the highway was one which, but for the custom, w y ould 
 be repairable by the parish at large, and so did not show what party 
 other than the defendants was liable to repair it. (i) 
 
 If a person indicted for not repairing ratione tenurce, or a township, 
 or other particular persons, indicted for not repairing by prescrip- 
 tion, plead (though unnecessarily) to the indictment, and show who 
 ought to repair, as they must do, it is necessary to traverse their 
 obligation to repair : but if a parish be indicted for not repairing a 
 highway, or a county for not repairing a bridge, and they throw the 
 charge upon another, they ought not to traverse their obligation to 
 repair, for it is a traverse of matter of law ; and such traverse, though 
 very often inserted, is demurrable, and therefore ought always to be 
 omitted. (/) Where an indictment charged that the defendant ought 
 to repair ratione tenurce of certain lands inclosed and encroached by 
 him out of the highway, a plea, traversing the obligation ratione 
 tenuroe, was held good ; on the ground that it professed to charge 
 the defendant ratione tenuroe, and not by reason of the encroachment ; 
 and that the obligation ratione tenuroe would continue, though the 
 land should be again thrown open to the highway, whereas the 
 obligation by reason of the encroachment would not. (Je) 
 
 In one case it was held that evidence of reputation could not be 
 admitted to establish a liability to repair ratione tenuroe, that liability 
 being a matter of a private nature. (/) But it has since been held 
 that evidence of reputation is admissible in such a case, (w) 
 
 Where the inhabitants of a parish pleaded that the inhabitants of 
 a particular district w y ere bound by prescription to repair all common 
 highways situate within that district, save and except one common 
 highway within the said district, it was holden that the plea might 
 be supported, although it appeared that the excepted highway was 
 of recent date ; and it was also holden that in such a plea it was not 
 necessary to state by whom the excepted highway was repairable, (n) 
 And such a plea will be good although it does not state any consider- 
 ation for the liability of the inhabitants of the district, (o) 
 
 Where any subdivision of a parish is liable to the repair of a high- 
 way, and the indictment is, notwithstanding, preferred against the 
 whole parish, care should be taken to plead the liability of such sub- 
 division ; for if judgment be given against the parish, whether after 
 
 (/) R. v. Eastrington, 5 A. & E. 765. plea concluding thus, ' And that the inhab- 
 it, v. Colling, 2 Cox, C. C. 184. itants of the said parish at large ought not to 
 
 (j) R. v. Stoughton, 2 Saund. 159, c. be charged with the repairing and amending 
 
 note (10). Rennet v. Filkins, 1 Saund. 2'-', the same.' 
 
 note (5). In R. v. Ecclesfield, 1 R. & A. (k) R. v. Stoughton, 2 Saund. 160. 
 
 350, 351, J. Williams arguendo denied that (/) R. v. Wavertree, 2 M. & Rob. 353, 
 
 such traverse is demurrable ; ami said that Maule, J. 
 
 R. v. Inhabitants of Glamorgan contained (m) R. v. Bedfordshire, 4 E. & R. 535. 
 
 such a traverse (2 East, 356, in notis), and (n) R. v. Ecclesfield, 1 Stark. Rep. 393. 
 
 that the better precedents have always in- (o) R. v. Ecclesfield, 1 R. & A. 348. 
 
 serted it. Supposing such traverse to be See R. v. Ashby Folville, 35 L. J. M. C. 
 
 necessary, it is sufficiently expressed by a 154.
 
 chap, xxxii. § ii.] Of Nuisances to Highways. 817 
 
 verdict upon not guilty, or by default, the judgment will be conclusive 
 evidence of the liability of the whole parish to repair, unless fraud 
 can be shown, (p) Fraud, however, is only put for example. As 
 against the parish at large the judgment is not conclusive, if the de- 
 fence was conducted by the inhabitants of a particular district in 
 which the indicted road lay, without any notice to the rest of the 
 parish, (q) 
 
 Where to an indictment for not repairing a highway against the 
 parish of Eardisland, consisting of three townships, Eardisland, 
 Burton, and Hardwicke, there was a plea on the part of Burton 
 that each of the three townships had immemorially repaired its own 
 highways separately ; it was held that the records of indictments 
 against the parish generally for not repairing highways situate in the 
 township of Eardisland, and the township of Hardwicke, with general 
 pleas of not guilty, and convictions thereupon, were prima facie evi- 
 dence to disprove the custom for each township to repair separately ; 
 but that evidence was admissible to show that these pleas of not guilty 
 were pleaded only by the inhabitants of the townships of Eardisland 
 and Hardwicke, without the privity of Burton, (r) 
 
 The defendant was indicted for the nonrepair of a highway, which 
 it was alleged he was liable to repair ratione tenures of certain lands 
 called Saw-pit Field, and pleaded not guilty. To prove this liability 
 evidence was given of the conviction of W. Smith, a former owner and 
 occupier of the same lands, for the non-repair of the same highway, 
 showing that in the year 1801 a presentment had been preferred 
 against him, alleging his liability to repair it ratione tenurm of the 
 lands called Saw-pit Field, to which he pleaded guilty. Evidence was 
 also given of the repair of the said highway subsequently to the said 
 conviction of W. Smith by the occupiers of the lands, of which Saw- 
 pit Field formed part; that public notice was given when Saw-pit 
 Field was offered for sale of the liability to repair the highway in 
 question, and that the defendant, who purchased the lands after such 
 notice, was now the owner and occupier of Saw-pit Field, and, upon 
 a case reserved after a verdict of guilty, the judges were unanimously 
 of opinion that there was evidence to go to the jury of immemorial 
 usage, and of the defendant's liability to repair the highway ratione 
 tenures ; and Parke, B., Alderson, B., Patteson, J., and Coleridge, J., 
 were of opinion that the conviction of W. Smith estopped the defend- 
 ant, who was privy to him in estate, from denying his liability 
 ratione tenures. If the defendant had pleaded that he was not liable 
 ratione tenures, then the prosecutor might have replied the previous 
 conviction as an estoppel, but as he had pleaded the general issue, 
 there was no opportunity of pleading the conviction as an estoppel, 
 and therefore the prosecutor might take advantage of it upon the evi- 
 dence as conclusive, (s) And on an indictment for non-repair of a high- 
 way against a township alleging it to be liable by prescription to 
 
 (p) R. v. St. Pancras, Peake, Rep. 219. (q) R. v. Townsend, Doug. 421. R. v. 
 
 R. v. Whitney, 7 C. & P. 208. J. A. Lnncnster, 2 Saund. 159 n. R. v. Eard- 
 
 Park, J ; see the same case, 3 A. & E. 69 ; island, 2 Camp. 494. 
 Read v. Jackson, 1 East, Rep. 355. R. v. (r) R. v. Eardisland, supra. 
 
 Blakemore, 21 L. J. M. C. 60. R. v. Haugh- (s) R. v. Blakemore, 2 Den. C. C. 410. 
 
 ton, 21 L. J. M. C. 89. 
 
 vol. I. — 52
 
 818 Indictment for Non-Repair. [book ii. 
 
 repair such highways in the township as the parish but for the pre- 
 scription would have been liable to repair, with a plea of not guilty, a 
 record of a presentment by a justice, under the 13 Geo. 3, c. 78, on 
 his own view, that the road in question was out of repair, and alle- 
 ging that it was in the township, and that the township ought to re- 
 pair it, with a plea of guilty by two of the inhabitants, and a sentence 
 of a fine, was held conclusive evidence against the township that the 
 highway was situate within it, and that the township was liable to 
 repair it ; and that, though the presentment might be bad on demurrer, 
 in arrest of judgment or on error, the conviction being before a com- 
 petent tribunal, and unreversed, was not the less an estoppel. It was 
 also held that it was unnecessary to prove that the fine had been 
 paid, as no fraud or collusion was shown, (t) So where a road ran 
 over a waste in the township of Ecclesall, but had always been repaired 
 by Hallam, both before and after an inclosure Act for Ecclesall, and 
 three years before the inclosure Act Hallam had submitted to an 
 indictment for non-repair of the road ; it was held that that conviction 
 was conclusive evidence that the road lay in Hallam, and that an award 
 under the Act was void as to that road, as the commissioners had 
 only jurisdiction over roads in Ecclesall. («) 
 
 Upon an indictment against the inhabitants of the township of B. ; 
 it appeared that the road indicted passed through three adjoining 
 townships, B., Attercliffe, and T. ; and the Court of Queen's Bench 
 held that the record of an indictment against the township of Atter- 
 cliffe for non-repair of part of the highway in that township, to which 
 that township appeared to have submitted, was admissible for the 
 purpose of proving that the way in question was a highway. It was 
 clear that user by the public and repair by the township would be 
 admissible as facts raising a presumption of highway ; and an indict- 
 ment was another fact of the same class : and proceedings at law to 
 compel the repair of a highway (when submitted to) show the right 
 as much or more than acts of repair without compulsion would have 
 done, (v) 
 
 It has been held that the record of an acquittal upon an indictment 
 for not repairing a highway is not evidence to show that the parish is 
 not liable ; on the ground that some other parties might have indicted 
 them, and that those parties could not be bound by this record, (w) 
 And a satisfactory reason for rejecting such evidence altogether seems 
 to be that the acquittal might have proceeded upon the want of proof 
 that the road was out of repair. (x~) In the case of an indictment for 
 not repairing a highway, which it w T as alleged the defendant was 
 bound to repair ratione tenures, it was held that an award made under 
 a submission by a former tenant for years of the premises, could 
 neither be received as an adjudication, the tenant having no authority 
 to bind the rights of his landlord, nor as evidence of reputation, being 
 post litem motum. (y) 
 
 (0 R. v. Haughton, 1 E. & B. 501. It (r) E. v. Brightside Bierlow, 13 Q. B. 
 
 was also held that a recital in an Act that 933. 
 
 the highway was in another township was (w) R. v. St. Pancras, Peake, Eep. 219. 
 
 only evidence, and did not prevail over the (x) Mann.Ind. N. P. R. 128. 
 
 estoppel. See R. v. Maybury, 4 F. & F. 90. (y) R. v. Cotton, 3 Camp. 444, cor. Dam- 
 
 (.') R. v. Nether Hallam, 6 Cox, C. C. pier, J. 
 435. Petrie v. Nuttall, 11 Exc. R. 569.
 
 chap, xxxii. § ii.] Of Nuisances to Highways. 81 ( J 
 
 As to witnesses not now being incompetent on the ground of their 
 being interested, see Vol. 3, Evidence. The prosecutor is a compe- 
 tent witness for the prosecution, (z) 
 
 Though the 13 Geo. 3, c. 78, s. 24, declared that no presentments 
 or indictments should be removed by certiorari before traverse and 
 judgment, except where the obligation of repairing came in question, 
 yet this clause did not take away the writ at the instance of the 
 prosecutor, for the crown does not traverse; and it was calculated 
 merely to prevent delay on the part of defendants, (a) And it was 
 held to be no objection to a certiorari to remove such a presentment, 
 that it was prosecuted by another than the justice presenting, if it 
 were by his consent, (b) The 5 Will. & M. c. 11, s. 6, also provided, 
 that if any indictment or presentment be against any person for not 
 repairing highways or bridges, and the right or title to repair the 
 same may come in question, upon a suggestion and affidavit made of 
 the truth thereof, a certiorari may be granted, provided that the 
 party prosecuting such certiorari enter into the recognizance men- 
 tioned in the Act. Upon an indictment against a parish for not 
 repairing a highway, the right to repair may come in question so as 
 to entitle the parish to remove it by certiorari, though the parish 
 plead not guilty only, it being stated in an affidavit filed by the 
 defendants, that, on the trial of the indictment, the question, whether 
 the parish were liable to repair, and the right to repair, would come 
 in issue, (c) And the prosecutor may remove an indictment by 
 certiorari, though there be no recognizance given according to the 
 statute, (d ) 
 
 The general rule of a new trial never being allowed where the 
 defendant is acquitted in a criminal case, seems to apply in a prose- 
 cution for not repairing a highway, though such prosecution is usually 
 carried on for the purpose of trying or enforcing a civil liability, (e) 
 But if the justice of the case seemed, to require it, the Court used to 
 stay the judgment upon payment of costs, until another indictment 
 was preferred for the purpose of trying the question of liability to 
 repair. (/) But it has been held that where the proceeding is in sub- 
 stance merely to try a civil right a new trial may be granted after an 
 acquittal : (#) and therefore a new trial would be granted in a case 
 where the question was as to the liability to repair or the non-repair of 
 
 (z) R. v. Hammersmith, 1 Stark. 337. Mawbey, 6 T. R. 619, ' In misdemeanors 
 
 (a) R. v. Bodenham, Cowp. 78. there is no authority to show that we cannot 
 
 (b) R. v. Penderryn, 2 T. R. 260. grant a new trial in order that the guilt or 
 
 (c) R. v. Taunton St. Mary, 3 M. & S. innocence of those who have heen convicted 
 465. may be again examined into.' It may be 
 
 (d) R. v. Farewell, 2 Str. 1209. Leave, observed also that, in cases of indictments 
 however, must be obtained by motion in the for misdemeanors, the Court will, in its dis- 
 same way by the prosecutor as by the de- cretion, save the point for consideration, giv- 
 fendants, by the 5 & 6 Will. 4, c. 33. ing the defendant an opportunity, in case he 
 
 (e) R. v. Silverton, 1 Wils. 298, cited 2 shall be convicted, to move to have an ac- 
 Salk. 646, in the note. R. v. Mann, 4 M. quittal entered. R. v. Gash and another, 1 
 & S. 337. R. v. Cohen, 1 Starkie, 516. R. Starkie R. 445. 
 
 v. Reynell, 6 East, 315. R. v. Wandsworth, \g) R. v. Chorley, 12 Q. B. 515. R. v. 
 1 B. & A. 63. R. u.Sutton, 5 P». & Ad. 52. Russell, 3 E. & B.' 942. R. v. Leitfi, 10 
 (/) R. v. Southampton, 19 Q. B. D. 590, A. & E. 398. These cases would seem to 
 approving R. v. Wandsworth, 1 B. & Aid. have been overruled by the decision in R. v. 
 63. R. v. Oxfordshire, 16 East, 223. It Southampton, supra, in which case, how- 
 was said by Lord Kenyon, C. J., in R. v. ever, these cases were not cited.
 
 820 Judgment. [book ii. 
 
 a highway ; but not where the charge was a wrongful obstruction of a 
 highway. (A) 
 
 The object of prosecutions for nuisances to highways is to effect 
 either a removal of the nuisance in cases of obstruction, or the repair 
 of the highway in cases where the nuisance charged is the want of 
 reparation. The judgment of the Court is usually a fine, and an 
 order on the defendant, at his own costs, to abate the nuisance in the 
 one case, {%) and in the other a fine, for the purpose of obliging the 
 defendants to repair the nuisance ; for they will not be discharged by 
 submitting to a fine, as a distringas will go ad infinitum until they 
 repair. (J) But writs of distringas are the only further remedy on an 
 indictment, upon which the Court has already pronounced judgment 
 by imposing a fine. For the fine is the punishment for the neglect 
 and offence of which the defendants are indicted ; and, though the 
 Court may compel an actual repair, yet the punishment has been 
 inflicted, and they cannot inflict a further punishment or fine. The 
 parish may, however, be again indicted ; and a fine may be imposed 
 on such new indictment, (k) And upon this principle an order of a 
 Court of quarter sessions by which it was ordered that the fine there- 
 tofore imposed for the not repairing a bridge should be increased by 
 a certain sum, was quashed. (7) In order to warrant a judgment 
 for abating the nuisance, it must be stated in the indictment to be 
 continuing ; as otherwise such a judgment would be absurd. (?n) 
 And if the Court be satisfied that the nuisance is effectually abated 
 before judgment is prayed upon the indictment, they will not in their 
 discretion give judgment to abate it. And though it was contended, 
 on the authority of several cases, (n) that if the nuisance be of a per- 
 manent nature the regular judgment must be to abate it, the Court 
 refused to give such judgment upon an indictment for an obstruction 
 in a public highway, where the highway, after the conviction of the 
 defendant, was regularly turned by an order of magistrates, and a 
 certificate was obtained of the new way being fit for the passage of 
 the public, and the affidavits stated that so much of the old way 
 indicted as was still retained was freed from all obstruction, (o) 
 But where the existence of a building, &c, is a nuisance, and the 
 indictment imports that it was existing at the time of the bill being 
 found, it seems that if a judgment be pronounced, it can only be a 
 judgment to abate the nuisance, (p) But where the nuisance arises 
 
 (h) R. v. Russell, supra. R. v. Johnson, (o) R. v. Incledon, 13 East, 164. Judg- 
 
 29 Law J. M. C. 133, 2 E. & E. 613. The ment was given that the defendant should 
 
 principle seems to be that where a defendant pay a fine to the King of 6s. Sd. In R. v. 
 
 is at the first trial in peril of imprisonment Mawbey, 6 T. R. 619, it was held that a 
 
 no new trial can be granted. See R. v. certificate by justices of the peace, that a 
 
 Duncan, 14 Cox, C. C. 771, per Lord Cole- highway indicted i« in repair is a legal in- 
 
 ridge, C. J. strumeut recognized by the Courts of Law, 
 
 (/) R.». Pappineau, 1 Str. 686. 1 Hawk, and admissible in evidence after conviction 
 
 P. C. c. 75, s. 15. when the Court are about to impose a fine. 
 
 U) R. v. Cluworth, 1 Salk. 358. 6 Mod. In R. v. Wingfield, 1 Black. Rep. 602, where 
 
 163. 1 Hawk. P. C. c. 76, s. 249. a person was convicted upon an indictment 
 
 (k) R. v. Old Malton, 4B. & A. 470, note, for not repairing a road ratione tenurce, it 
 
 (I) R. v. Machynnleth, 4 B. & A. 469. was held that the Court would not inflict a 
 
 (m) R. v. Stead, 8 T. R. 142. small fine, on a certificate of the road being 
 
 (n) R. v. Pappineau, supra. R. v. The repaired, until the prosecutor's costs were 
 
 Justices of Yorkshire, 7 T. R. 467. R. v. paid. 
 
 Stead, supra. ' ( p) 1 Str. 686.
 
 chap. xxxn. § ii.] Of Nuisances to Highways. 821 
 
 not from the existence of the thing, but from the use to which it is 
 applied, a judgment to abate, &c, is not necessary ; (q) and, therefore, 
 if a stinking trade is indicted, it does not follow that the house in 
 which it is carried on is to be pulled down, (r) And if a house is a 
 nuisance from being too high, so much only as is too high shall be 
 pulled down, (s) 
 
 The 5 & 6 Will. 4, c. 50, s. 96, enacts, that ' no fine, issue, penalty, 
 or forfeiture for not repairing the highway, or not appearing to any 
 indictment for not repairing the same, shall hereafter be returned 
 into the Court of Exchequer or other Court, but shall be levied by 
 and paid into the hands of such person residing in or near the parish 
 where the road shall lie, as the justices or Court imposing such fines, 
 issues, penalties, or forfeitures, shall order and direct, to be applied 
 towards the repair and amendment of such highway ; and the person 
 so ordered to receive such fine shall and is hereby required to receive, 
 apply, and account for the same according to the direction of such 
 justices or Court, or in default thereof shall forfeit double the sum 
 received ; and if any fine, issue, penalty, or forfeiture to be imposed 
 for not repairing the highway, or not appearing as aforesaid, shall 
 hereafter be levied on any inhabitant of such parish, township, or 
 place, then such inhabitant shall and may make his complaint to the 
 justices at a special sessions for the highways ; and the said justices are 
 hereby empowered and authorized, by warrant under their hands, to 
 make an order on the surveyor of the parish for payment of the same 
 out of the money receivable by him for the highway rate, and shall, 
 within two months next after service of the said order on him, pay 
 unto such inhabitant the money therein mentioned.' 
 
 Upon the latter part of sec. 47 of the 13 Geo. 3, c. 78, which was 
 similar to the 5 & 6 W. 4, c. 50, s. 96, it was held that the application 
 for the rate to reimburse the inhabitants, on whom a fine has been 
 levied, after a conviction upon an indictment against the parish for 
 nonrepair, ought to be made within a reasonable time after such levy, 
 and before any material change of inhabitants ; and the Court of 
 King's Bench refused a mandamus to the justices to make such rate 
 after an interval of eight years ; though applications had been made 
 in the interval, from time to time, to the magistrates below, who had 
 declined to make the rate on the ground that the parish at large had 
 been improperly indicted and convicted, and though, so lately as the 
 year before the application to the Court of King's Bench, the magis- 
 trates had ordered an account to be taken of the quantum expended 
 upon the repairs out of the money levied, (t) In a case where, 
 although separate parts of a parish were bound to maintain their 
 own roads, there had been an indictment and judgment against the 
 parish generally, but such indictment was only known to and de- 
 fended by that part of the parish in which the defective road lay, it 
 was held that the justices might make a warrant to reimburse upon 
 that part only ; and the Court of King's Bench granted a mandamus 
 to collect to the surveyor of that part only. (w<) 
 
 es of Lancashire, 12 
 Dougl. 421, 
 
 (q) Id. ib. 
 
 (t) R. v. The'Justic 
 
 (r) By Lord Raymond and Reynolds, J., 
 
 East, 366. 
 
 1 Str. 688, 9. 
 
 (u) R. v. Townsend, 
 
 (s) By Ld. Raymond, 1 Str. 688. 

 
 822 Indictment. — Costs. [book ii. 
 
 The 3 Geo. 4, c. 126, s. 10, provides for a portion of the fine being 
 paid by the turnpike trustees when the highway shall be a turnpike 
 road ; and enacts, that when the inhabitants of any parish, township, 
 or place, shall be indicted or presented for not repairing any highway, 
 being a turnpike road, and the Court, before whom such indictment or 
 presentment shall be preferred, shall impose a fine for the repair of such 
 road, such fine shall be apportioned, together with the costs and charges 
 between such inhabitants and the turnpike trustees as to the Court 
 shall seem just: and the Court may order the treasurer of such turn- 
 pike road to pay the same out of the money then in his hands, or 
 next to be received by him, in case it shall appear to such Court, from 
 the circumstances of such turnpike debts and revenues, that the same 
 may be paid without endangering the security of the creditors who 
 have advanced their money upon the credit of the tolls. The true 
 construction of a similar provision in the repealed Act of 13 Geo. 3, 
 was held to be, that the Court which imposed the fine had the 
 power to apportion it between the parish and the trust ; so that 
 where an indictment was originally preferred at the assizes and 
 afterwards removed into the Court of King's Bench by certiorari, 
 it was held that the Court of King's Bench might apportion the 
 fine, (v) 
 
 Where an indictment was preferred at the assizes under an order 
 of two justices, pursuant to sec. 95 of the 5 & 6 Will. 4, c. 50, and the 
 defendants were found guilty upon the trial of the traverse at a sub- 
 sequent assizes, it was held that the judge had no discretion, but was 
 bound to award costs to the prosecutor, (w) But where an indictment 
 was preferred under a similar order, and tried at nisi prius, after 
 having been removed by certiorari, and the defendants acquitted on 
 the ground that the road was not a highway, it was objected that the 
 prosecutor was not entitled to costs under sec. 95 of 5 & 6 Will. 4, 
 c. 50 ; 1st, because that section only applied to cases where the publi- 
 city of the road was admitted, but the liability to repair disputed ; 
 2ndly, that the section did not apply to cases where the indictment 
 was removed by certiorari ; 3rdly, that sec. 95 was to be construed 
 together with sec. 98, and merely meant that where the defence was 
 frivolous the costs were to be paid out of the fund there mentioned ; 
 and it was held that the prosecutor was not entitled to costs, (x) And 
 it is now settled that there is no jurisdiction to make an order for 
 costs unless the jury find, or it appear affirmatively, that the road is a 
 highway, (y) Where a jury is discharged without giving a verdict 
 there is no power to order the costs to be paid out of the highway 
 rate, (z) So the judge has no jurisdiction to certify for costs under 
 sec. 95, where the road described in the indictment is not the road 
 
 (i>) R. v. Upper Papworth, 2 East, R. Heanor, infra. His Lordship intimated that 
 
 413. R. v. Prestoti, 2 Lew. 193. Alder- he thought the last point untenable. See 
 
 son, B. R. v. Cleckheaton, 11 Law T. 305. 
 
 (tv) R. v. Yarkhill, 9 C. & P. 218, Wil- (y) R. v. Heanor, 6 Q. B. 745. R. v. 
 
 Hams, J., after consulting the other Judges Downholland, 2 Sess. C. 177. R. v. Challi- 
 
 of B. R. See the section, ante, p. 808. combe, 2 M. & Rob. 311 (a). R. v. Paul, 2 
 
 (x) R. v. Chedworth, 9 C. & P. 285. M. & Rob. 307. R. v. Bucklaud, 34 L. J. 
 
 Patteson, J., after consideration. The ground M. C. 178 ; 6 B. & S. 397. 
 on which the costs were refused, was that (z) R. v. Heytesbury, 8 Law T. 315. 
 
 the road was not a highway. See R. v.
 
 chap. xxxn. § ii.] Of Nuisances to Higlmwjs. 823 
 
 ordered to be indicted, (a) The Court may order the costs under 
 this section where the defendants plead guilty, (b) 
 
 Before the Highway Act, 1864, s. 46, (c) an order directing an in- 
 dictment for the non-repair of a road was void, unless it appeared on 
 the face of it that it was made at a special sessions for the highways 
 within the division in which the road was ; an order so void would 
 not support an order for payment of the costs, (d) The order for 
 costs must state out of what funds the costs are to be paid or it is 
 bad. (e) Where an indictment is found at one quarter sessions and 
 the trial adjourned to the next sessions, the latter may make an order 
 for costs, if) Where an indictment was preferred against a parish 
 under an order, and they pleaded that an individual was liable to 
 repair the road ratione tenurce, and the jury found a verdict for the 
 defendants, Wightman, J. held that the prosecutor was entitled to 
 his costs, and granted a mandamus to compel the sessions to order 
 payment of them. (#) 
 
 Where an order for costs is made in a Criminal Court the Court or 
 its officer ought to ascertain the amount. Where therefore a judge 
 on the Crown side at the assizes ordered the costs to be paid gener- 
 ally, but they were not ascertained or taxed during the continuance 
 of the commission ; it was held that a mandamus to enforce their 
 payment could not be granted, (h) If the costs are not paid by the 
 defendants in pursuance of a rule of Court an attachment for con- 
 tempt will be awarded against them, (i) The words ' rate made and 
 levied ' in sec. 95 do not point merely to any particular rate already 
 made and levied at the time when an order of costs is made, but to 
 the highway rate in general, and it is the duty of the surveyors in 
 office at the time an order is made to pay the costs out of any funds 
 then in their hands, or, if they have none, to make and levy a rate for 
 the purpose ; and the order binds not only the surveyors in office at 
 the time it was made but their successors also until the costs are 
 paid, and if they are not paid a mandamus will be granted to take 
 proper steps towards their payment, (j) 
 
 Where an indictment for the non-repair of a highway has been 
 preferred by order of justices under 5 & 6 Will. 4, c. 50, s. 95, and 
 has been removed by certiorari into the Court of Queen's Bench 
 at the instance of the defendants, the judge who tries the indictment 
 has no power under that section, to direct that the costs of the 
 
 (a) R. v. Fifehead, 3 Cox, C. C. 59. the other way. See R. v. Denton, post, 
 R. v. Aston Ingham, Hereford Sum. Ass. . 824. 
 
 1840. R. v. Linton, ibid., Williams, J. (c) See this Sect, post, p. 833. 
 
 R. v. Vowchurch, 2 C. & K. 393. K. v. (d) R. v. Hickling, 7 Q. B. 880. R. v. 
 
 Stainhall, 1 F. & F. 363. R. v. Langlev, 2 Martin, 2 Q. B. 1037. R. v. Heytesbury, 8 
 
 F. & F. 170. R. v. Lee, 1 Q. B. D. 198 ; Law T. 315. 
 
 45 L. J. M. C. 54, where an indictment (e) R. v. Watford, 4 D. & L. 593. See 
 which charged the inhabitants of a township R. v. Eardisland, 3 E. & B. 960. R. v. Jus- 
 with the non-repair of a general highway was tices of Surrey, 1 Bail. C. C. 70. 
 amended at the trial, so as to charge them (/) R. v. Justices of Surrey, supra. 
 in respect only of a limited highway, and it (g) R. v. Justices of Surrey, supra. 
 was held that the judge had no power to (h) R. v. Clark, 5 Q. B. 887. R. v. Lam- 
 order the costs to be paid under the above beth, 3 C. L. R. 35. 
 section. (i) R. v . Pembridge, 3 Q. B. 901. 
 
 (b) R. v. Haselmere, 32 L. J. M. C. 30, (;') R. v. Eyton, 3 E. & B. 390. The 
 3 B. & S. 313. There were prior decisions Court also held that the costs could not be 
 
 recovered under sec. 103.
 
 824 Indictment. — Costs. [book ii. 
 
 prosecution shall be paid out of the rate, The costs in such a case 
 are provided for by the 5 W. & M. c. 11. (k) 
 
 The 5 & 6 Will. 4, c. 50, s. 98, enacts, ' that it shall and may be 
 lawful for the Court before whom any indictment shall be preferred 
 for not repairing highways, to award costs to the prosecutor, to 
 be paid by the person so indicted, if it shall appear to the said 
 Court that the defence made to such indictment was frivolous or 
 vexatious.' (I) 
 
 If the defendant pleads guilty, costs cannot be awarded under 
 this section, (m ) 
 
 Where at the trial the judge certified under the 13 Geo. 3, c. 78, 
 s. 64 (the repealed enactment on this subject), that the defence was 
 frivolous, the prosecutor was entitled to costs, although the defendant 
 obtained a rule to' arrest the judgment. (?i) 
 
 It was once held that the judge on the trial of an indictment, 
 preferred by order of two justices under the 5 & 6 Will. 4, c. 50, 
 s. 95, and removed by certiorari and tried at the assizes, had no 
 authority to award costs, because the defence was frivolous, under 
 sec. 98, as that power was limited to the Court at which the in- 
 dictment was preferred ; (o) but in that case the Court of Queen's 
 Bench awarded the costs to the prosecutor, for 'the Court before 
 whom any indictment shall be preferred ' included the Queen's 
 Bench, (p) It has since, however, been held, that where an indict- 
 ment for non-repair of a highway is removed by certiorari, the judge 
 at the trial may certify that the defence is frivolous, and award the 
 costs, (q) 
 
 The 5 Will. & M. c. 11, s. 3, enacts, that if the defendant, prose- 
 cuting such writ of certiorari as is mentioned in that Act, ' be con- 
 victed of the offence for which he was indicted, that then the Court 
 of King's Bench shall give reasonable costs to the prosecutor if he be 
 the party grieved (?') or injured, or be a justice of the peace, mayor, 
 bailiff, constable, &c, or any other civil officer, who shall prosecute 
 upon the account of any fact committed or done that concerned him 
 or them as officer or officers to prosecute or present ' to be taxed, &c. 
 Upon this statute it has been held, that a justice of the peace who 
 indicts a road for being out of repair is entitled to his costs, after a 
 removal of the indictment by certiorari if the defendant be con- 
 victed, (s) In a case where this statute was considered as a remedial 
 law, (t) it was held that several persons were entitled to costs under 
 it as prosecutors of an indictment, removed by certiorari, for not 
 repairing a highway : one, as constable of the manor within whichj 
 
 (*•) R. v. Ipstones, 37 L. J. M. C. 37, L. (n) R. V. Margate, 6 M. & S. 130. 
 
 R. 3 Q. B. 216. R. v. Eardisland dissented (o) R. v. Preston, 2 M. & Rob. 137. 
 
 from. (p) R. v. Preston, 7 Dow. P. C. 593. 
 
 (/) This section gives no costs in any See R. v. Upper Papworth, ante, p. 822. 
 
 case to the defendant. The 13 Geo. 3, c. 78, (q) R. v. Pem bridge, 3 Q. B. 901. R. v. 
 
 s. 64, gave them to the person indicted, Great Broughton, 2 M. & Rob. 444, Rolfe, 
 
 where the prosecution was vexatious. C. S. B. R. v. Chadderton, 5 T. R. 272. 
 
 G. R. v. Oommerell, 4 M. & S. 203. R. v. (r) R. v. Incledon, 1 M. & S. 268. 
 
 Clifton, 6 T. R. 344. R. v. Margate, 6 M. (*) R. v. Kettleworth, 5 T. R. 33. 
 
 & S. 130. R. v. Salwick, 2 B. & Ad. 136. (tj By Lord Ellenborough, C. J., in con- 
 
 R. v. Chadderton, 5 T. R. 272. formity with the opinion of Lord Kenyon, 
 
 \m) R. v. Denton (township of), 34 L. J. C. J., in R. v. Kettleworth, 5 T. R. 33. and 
 
 M. C. 13 ; 10 Cox, C. C. 61. contrary to the view taken of it by Buller, J.,
 
 cnAP. xxxii. § ii.] Of Nuisances to Highways. 825 
 
 the highway lay ; the others, as parties grieved ; they having used 
 the way for many years in passing and repassing from their homes 
 to the next market town, and being obliged, by reason of the want 
 of repair, to take a more circuitous route, (u) 
 
 By 16 & 17 Vict. c. 30, s. 5, after reciting that it is expedient to 
 make further provision for preventing the vexatious removal of in- 
 dictments into the Court of Queen's Bench, ' whenever any writ of 
 certiorari to remove an indictment into the said Court shall be 
 awarded at the instance of a defendant or defendants, the recogni- 
 zance now by law required to be entered into before the allowance 
 of such writ shall contain the further provisions following, that is 
 to say, that the defendant or defendants, in case he or they shall be 
 convicted, shall pay to the prosecutor his costs incurred subsequent 
 to the removal of such indictment,' &c. Held, that the prosecutor is 
 entitled to his costs in the case of an indictment removed by certiorari 
 under this section, though he is not ' the party grieved or injured/ to 
 whom costs are limited by the previous Act, 5 & 6 W. & M. c. 11, 
 s. S.(v) 
 
 The 5 & 6 Will. 4, c. 50, s. Ill, enacts, 'that if the inhabitants 
 of any parish shall agree at a vestry to defend any indictment found 
 against any such parish, or to appeal against any order made by or 
 proceeding of any justice of the peace in the execution of any powers 
 given by this Act, or to defend any appeal, it shall and may be law- 
 ful for the surveyor of such parish to charge in his account the 
 reasonable expenses incurred in defending such prosecution, or prose- 
 cuting or defending such appeal, after the same shall have been agreed 
 to by such inhabitants at a vestry or public meeting as aforesaid, and 
 allowed by two justices of the peace within the division where such 
 highway shall be ; which expenses, when so agreed to or allowed, 
 shall be paid by such parish out of the fines, forfeitures, payments, 
 and rates authorised to be collected and raised by virtue of this Act : 
 provided, nevertheless, that if the money so collected and raised is 
 not sufficient to defray the expenses of repairing the highways in the 
 said parish, as well as of defending such prosecution, or prosecuting 
 or defending such appeal as aforesaid, the said surveyor is hereby 
 authorised to make, collect, and levy an additional rate in the same 
 manner as the rate by this Act is authorised to be made for the repair 
 of the highway.' 
 
 Where two surveyors included in their accounts the expenses of 
 supporting the appointment of one of them for a previous year against 
 an appeal, which was dismissed, and also the expenses of opposing a 
 rule for a certiorari to remove their accounts into the Queen's Bench, 
 which rule was discharged, it was held that the justices had juris- 
 diction to allow these expenses under the 13 Geo. 3, c. 78, s. 48, 
 although these expenses had not been agreed to by the inhabitants 
 under sec. 65. (w) 
 
 By sec. 113, 'nothing in this Act contained shall apply to any 
 
 in E. v. Sharpness, 2 T. R. 48, where that (v) R. v. Oastler, 43 L. J. Q. B. 42 ; 12 
 
 learned judge said, that the statute had Cox, C. C. 578. 
 
 always heen construed as strictly as possible. (w) R. v. Fowler, 1 A. & E. 836; 3 N. 
 
 (u) R. »>. Taunton St. Mary, 3 M. & S. & M. 826. 
 465.
 
 826 Indictment. — Costs. [book n. 
 
 turnpike-roads, except where expressly mentioned, or to any roads, 
 bridges, carriageways, cartways, horseways, bridleways, footways, 
 causeways, churchways, or pavements, which now are or may here- 
 after be paved, repaired, or cleansed, broken up, or diverted, under or 
 by virtue of the provisions of any local or personal Act or Acts of 
 Parliament.' 
 
 By sec. 5, 'In the construction of this Act the word "surveyor" 
 shall be understood to mean surveyor of the highways, or way-warden ; 
 the word " parish " shall be construed to include parish, township, 
 tithing, rape, vill, wapentake, division, city, borough, liberty, market- 
 town, franchise, hamlet, precinct, chapelry, or any other place or 
 district maintaining its own highways; and wherever anything in 
 this Act is prescribed to be done by the inhabitants of any parish in 
 vestry assembled, the same shall be construed to extend to any meet- 
 ing of inhabitants contributing to the highway rates in places where 
 there shall be no vestry meeting, provided the same notice shall have 
 been given of the said meeting as would be required by law for the 
 assembling of a meeting in vestry ; and that the word " highways " 
 shall be understood to mean all roads, bridges (not being county 
 bridges), carriageways, cartways, horseways, bridleways, footways, 
 causeways, churchways, and pavements ; and that the word " jus- 
 tices " shall be understood to mean justices of the peace for the 
 county, riding, division, shire, city, town, borough, liberty, or place in 
 which the highway may be situate, or in which the offence may be 
 committed ; and that the word "church" shall be understood to include 
 chapel ; and that the word " division " shall be understood to include 
 limit ; and that the word " owner" shall be understood to include occu- 
 pier ; and "inhabitant" to include any person rated to the highway 
 rate ; and the words " petty session " or " petty sessions " to mean the 
 petty session or petty sessions held for the division or place ; and 
 wherever in this Act, in describing or referring to any person or party, 
 animal, matter, or thing, the word importing the singular number or 
 the masculine gender only is used, the same shall be understood to in- 
 clude and shall be applied to several persons or parties as well as one 
 person or party, and females as well as males, and several animals, 
 matters, or things, as well as one animal, matter, or thing, respec- 
 tively, unless there be something in the subject or context repugnant 
 to such construction ; and all the powers hereby given to, and notices, 
 matters, and things required for, and duties, liabilities, and forfeitures 
 imposed on, surveyors, shall be applicable to all persons, bodies cor- 
 porate or politic, liable to the repair of any highway.' 
 
 A public bridge repairable by immemorial custom by the inhabit- 
 ants of a hundred, is not a highway within the meaning of the term 
 highway in this section, and is not repairable under this Act by the 
 parish in which it is situated, (x) 
 
 By the Local Government Act, 1888, the maintenance of main roads 
 within a county is transferred to the County Council, and it may be- 
 come a question whether the County Council would be indictable for 
 non-repair of such roads (see 51 and 52 Vic. c. 41, ss. 11, 79, 97). 
 
 (x) R. v. The Inhabitants of the Upper Half Hundred of Chart and Longbridge, 39 
 L. J. M. C. 107.
 
 chap. xxxn. § II.] Of Nuisances to Highways. 827 
 
 Highway Acts, 1862, 1864, 1878. The Public Health Act, 1875, as 
 
 to Highways. 
 
 The 25 & 26 Vict. c. 61 (Highway Act, 1862) the 27 & 28 Vict, 
 c. 101 (Highway Act, 1864) and the 41 & 42 Vict. c. 77 (Highway 
 Act, 1878) should be shortly noticed. 
 
 By these Acts a county, or part of a county, may be formed into a 
 highway district for the more convenient management of highways. 
 
 The Highway Board under these Acts consists of the way-wardens 
 elected in the several places within the district in manner mentioned 
 in the Acts, and of the justices acting for the county and residing 
 within the district. 
 
 The board is a body corporate by the name of the Highway Board 
 of the district to which it belongs, having a perpetual succession and 
 a common seal, with a power to acquire and hold lands for the pur- 
 poses of the Highway Acts without any license in mortmain. By 25 
 & 26 Vict. c. 61, s. 11, all such powers, rights, duties, liabilities, jcapa- 
 cities and incapacities (except the power of making, assessing, and 
 levying highway rates) as are vested in or are attached to, or would 
 but for this Act have become vested in or attached to any surveyor 
 or surveyors of any parish forming part of the district, shall vest in 
 and attach to the highway board. 
 
 By sec. 16 the district surveyor appointed by the board shall act as 
 the agent of the board in carrying into effect all the works and per- 
 forming all the duties by this Act required to be carried into effect or 
 to be performed by the board, and he shall in all respects conform to 
 the orders of the board in the execution of his duties, and the assist- 
 ant surveyor, if any, shall perform such duties as the board may 
 require under the direction of the district surveyor. 
 
 By s. 17, the Highway Board shall maintain in good repair the 
 highways within their district, and shall, subject to the provisions 
 of this Act, as respects the highways in each parish within their dis- 
 trict perform the same duties, have the same powers, and be liable to 
 the same legal proceedings as the surveyors of such parish would have 
 performed, had, and been liable to if this Act had not passed. It shall 
 be the duty of the district surveyor to submit to the Board at their 
 first meeting in every year an estimate of the expenses likely to be 
 incurred during the ensuing year for maintaining and keeping in 
 repair the highways in each parish within the district of the board, 
 and to deliver a copy of such estimate as approved or modified by the 
 board, so far as the same relates to each parish to the waywarden of 
 such parish. 
 
 By sec. 18, where complaint is made to any justice of the peace 
 that any highway within the jurisdiction of the Highway Board is 
 out of repair, the justice shall issue two summonses, the one ad- 
 dressed to the Highway Board and the other to the waywarden of 
 the parish liable to the repair of such highway, requiring such board 
 and waywarden to appear before the justices at some petty sessions 
 in the summons mentioned, to be held in the division where such 
 highway is situate ; and at such petty sessions, unless the board 
 undertake to repair the road to the satisfaction of the justices, or
 
 828 Highway Act, 1862. [book ii. 
 
 unless the waywarden deny the liability of the parish to repair, the 
 justices shall direct the board to appear at some subsequent petty 
 sessions to be then named, and shall either appoint some competent 
 person to view the highway, and report to them on its state at such 
 other petty sessions, or fix a day previous to such petty sessions, at 
 which two or more of such justices will themselves attend to view 
 the highway. At such last-mentioned petty sessions, if the justices 
 are satisfied, either by the report of the person so appointee!, or by 
 such view as aforesaid, that the highway complained of is not in a 
 state of complete repair, it shall be their duty to make an order on 
 the board limiting a time for the repair of the highway complained 
 of ; and if such highway is not put in complete and effectual repair 
 by the time limited in the order, the justices in petty sessions shall 
 appoint some person to put the highway into repair, and shall by 
 order direct that the expenses of making such repairs together with 
 a reasonable remuneration to the person appointed for superintend- 
 ing such repairs, and amounting to a sum specified in the order, 
 together with the costs of the proceedings, shall be paid by the 
 board; and any order made for the payment of such costs and 
 expenses may be removed into the Court of Queen's Bench, in the 
 same manner as if it were an order of General or Quarter Sessions, 
 and be enforced accordingly. All expenses so directed to be paid by 
 the board in respect of the repairs of any highway shall be deemed 
 to be expenses incurred by the board in repairing such highway, and 
 shall be recovered accordingly. The Highway Board may appear 
 before the justices at petty sessions by their district surveyor or 
 clerk, or any member of the board. 
 
 By sec. 19, when on the hearing of any such summons respecting 
 the repair of any highway the liability to repair is denied by the 
 waywarden on behalf of his parish, or by any party charged there- 
 with, the justices shall direct a bill of indictment to be preferred, 
 and the necessary witnesses in support thereof to be subpoenaed, at 
 the next assizes to be holden, in and for the said county, or at the 
 next General Quarter Sessions of the peace for the county, riding, 
 division or place wherein such highway is situate, against the inhabi- 
 tants of the parish, or the party charged therewith, for suffering and 
 permitting the said highway to be out of repair; and the costs of 
 such prosecution shall be paid by such party to the proceedings as 
 the court before whom the case is tried shall direct, and if directed 
 to be paid by the parish, shall be deemed to be expenses incurred 
 by such parish in keeping its highways in repair, and shall be paid 
 accordingly. 
 
 Under this section 19, the power to direct an indictment to be 
 preferred does not arise when the liability to repair is denied on 
 the ground alone that the road is not a highway, and the liability 
 is admitted if the road be in fact a highway, and the denial of the 
 road being a highway is maele bond fide. In order to give the justices 
 such a power, the liability must lie denied on some ground other 
 than that the road is not a highway, such as that some one else is 
 bound to repair. The expression in section 19, ' when the liability 
 to repair is denied,' is to bear the same construction as the expres- 
 sion, ' if the duty or obligation of such repairs is denied,' in section
 
 chap. xxxn. § ii.] Of Nuisances to Highways. 829 
 
 95 of 5 & 6 Will. 4, c. 50. SemUe — that sections 94 and 95 of 5 & 
 6 Will. 4, c. 50, and sections 17, 18 and 19 of 25 & 26 Vict. c. 61, 
 only apply to admitted highways, (y) 
 
 Where on the trial of an indictment ordered by justices under the 
 25 & 26 Vict. c. 61, s. 19, for the non-repair of an alleged highway, 
 the road is found not to be a highway, the court has no power to 
 order costs, (z) 
 
 By 25 & 26 Vict. c. 61, s. 34, where any highway which any body 
 politic or corporate, or person is liable to repair by reason of tenure 
 of any land, or otherwise howsoever, shall be adjudged in the manner 
 provided by the principal Act (a) to be out of repair, the highway 
 board of the district in which such highway is situate may, if they 
 see fit, direct their surveyor to repair the same, and the expenses to 
 be incurred in such repair shall be paid by the party liable to repair 
 as aforesaid ; and it shall be lawful for any justice, upon the appli- 
 cation of any person authorized in this behalf by the highway board, 
 to summon the party liable to pay such expenses to appear before 
 two justices, at a time and place to be named in such summons, and 
 upon the appearance of the parties, or in the absence of either of 
 them, it shall be lawful for such justices to hear and determine the 
 matter, and make such order, as well as to costs or otherwise, as to 
 them may seem just. 
 
 By 27 and 28 Vict. c. 101, s. 23, section thirty-four of the 'High- 
 way Act, 1862/ shall be construed as if, instead of the words ' shall 
 be adjudged in the manner provided by the principal Act to be out 
 of repair,' the words were substituted, ' shall be adjudged in manner 
 provided by the " Highway Act, 1862 " to be out of repair.' 
 
 By 25 & 26 Vict. c. 61, s. 35, where any person or corporation is 
 liable, by reason of tenure of lands or otherwise, to repair any high- 
 way situate in a highway district, the person or corporation so liable 
 may apply to any justice of the peace for the purpose of making such 
 highway a highway to be repaired and maintained by the parish in 
 which the same is situate ; and such justice shall thereupon issue 
 summonses requiring the waywarden of such parish, the district 
 surveyor, and the party so liable to repair such highway as aforesaid, 
 to appear before two or more justices in petty sessions assembled, 
 and the justices at such petty sessions shall proceed to examine and 
 determine the matter, and shall, if they think fit, make an order 
 under their hands that such highway shall thereafter be a highway 
 to be thereafter repaired and maintained by the parish, and .shall in 
 such order fix a certain sum to be paid by such person or corporation 
 to the highway board of the district, in full discharge of all claims 
 thereafter in respect of the repair and maintenance of such highway ; 
 and in default of payment of such sum the board may proceed for the 
 recovery thereof, in the same manner as for the recovery of penalties 
 or forfeitures recoverable under this Act : provided always, that when 
 the sum so fixed to be paid in full discharge of all claims thereafter 
 in respect of the repair and maintenance of such highway exceeds 
 fifty pounds, the same, when received, shall be invested in the name 
 
 (y) R. v. Farrer, 35 L. J. M. C. 210 ; (z) R. v. Bucklan.I, 31 L. J. M. C. 178. 
 
 ante, p. 807. (a) See post, p. 832.
 
 830 Highway Act, 1862. [book ii. 
 
 of the highway board of the district in some public government 
 securities, and the interest and dividends arising therefrom shall be 
 applied by such board towards the repair and maintenance of the 
 highways within the parish in which such highway is situate ; but 
 when such sum does not exceed £50 the same or any part thereof, at 
 the discretion of such highway board, shall from time to time be 
 applied by such board towards the repair and maintenance of the 
 highways within such parish: provided that any person aggrieved by 
 any order of justices made in pursuance of this section may appeal 
 to a Court of General or Quarter Sessions, holden within four months 
 from the date of such order ; but no such appeal shall be entertained 
 unless the appellant has given to the other party to the case a notice 
 in writing of such appeal, and of the matter thereof, within fourteen 
 days after such order, and seven clear days at the least before such 
 sessions, .and has entered into a recognizance, with two sufficient 
 sureties, before a justice of the peace, conditioned to appear at the 
 said sessions, and to try such appeal, and to abide the judgment of 
 the court thereupon, and to pay such costs as may be by the court 
 awarded, and upon such notice being given, and such recognizance 
 being entered into, the court at such sessions shall hear and deter- 
 mine the matter of the appeal, and shall make such order thereon, 
 with or without costs to either party, as to the court may seem meet. 
 From and after the making of such order by the justices, or by the 
 court on appeal, as the case may require, such highway shall be 
 repaired in like manner and at the like expense as highways which 
 a parish is liable to repair. 
 
 By 27 & 28 Vict. c. 101, s. 24, the highway board may apply, 
 under sec. 35 of the Highway Act of 1862, for the purpose of making 
 any highway to which that section refers a highway to be repaired 
 and maintained by the parish in which the same is situate, and upon 
 such application being made the same proceedings may be had as 
 upon the application of the person or corporation liable to repair 
 the same. 
 
 By 25 & 26 Vict. c. 61, s. 36, where the inhabitants of any parish 
 are desirous of undertaking the repair and maintenance of any drift- 
 way, or any private carriage or occupation road, within their parish, 
 in return for the use thereof, the district surveyor may, at the request 
 of the inhabitants of such parish assembled in a vestry duly con- 
 vened for the purpose, and with the consent in writing of the owner 
 and the occupier of every part thereof, apply to the justices in petty 
 sessions to declare such driftway or road to be a public highway, to 
 be repaired at the expense of the parish ; and upon such application 
 being made it shall be lawful for the justices to declare the same to 
 be a public carriage road, to be repaired at the expense of the parish. 
 (See ante, p. 795.) 
 
 By sec. 41, any parish or part of a parish included in a highway 
 district may adopt the Local Government Act in the same manner 
 and under the same circumstances in and under which it might have 
 adopted the same if it had not been included in such district ; and 
 upon such adoption being made, such parish or part of a parish shall 
 cease to form part of such district, subject, nevertheless, to the pay- 
 ment of any contribution that may at the time of such adoption be 
 due from such parish or part of a parish to the highway board.
 
 chap, xxxii. § ii.] Of Nuisances to Highways. 831 
 
 By sec. 42, this Act shall be construed as one with the principal 
 Act, (b) so far as is consistent with the provisions of this Act. 
 
 Sub-sec. 6, any summons or notice, or any writ, or any proceeding 
 at law or in equity requiring to be served upon the board, may be 
 served by the same being left at or transmitted through the post in a 
 prepaid letter directed to the office of the board, or being given per- 
 sonally to the district surveyor or clerk of the board. 
 
 By sec. 44, all the provisions of the principal Act (b) for widening, 
 diverting, and stopping up highways, shall be applicable to all high- 
 ways which now are or may hereafter be paved, repaired, or cleansed 
 under or by virtue of any local or personal Act or Acts of Parliament, 
 or which may be situate within the limits of any such Act or Acts, 
 except highways which any railway company, or the owners, con- 
 servators, commissioners, trustees, or undertakers of any canal, river, 
 or inland navigation, are liable by virtue of any Act of Parliament 
 relating to such railway, canal, river, or inland navigation to make, 
 maintain, repair, or cleanse. 
 
 By sec. 45, whereas there are in certain boroughs in England and 
 Wales, roads and highways that are now and have heretofore been 
 repaired by the inhabitants of the several parishes or townships 
 within which such roads and highways are situated, and who also 
 contribute and pay to the general rates levied for the repair of the 
 public streets, roads, and highways maintained and kept in repair by 
 the council of such boroughs, by reason whereof a great burthen is 
 imposed upon the ratepayers of the said parishes and townships ; and 
 it being doubtful whether the council of such boroughs have the 
 power to adopt such parish roads and highways, or to apply the rates 
 collected in such boroughs in repairing the same : be it enacted, that 
 it shall and may be lawful for the council of every such borough in 
 England and Wales, upon the petition of the majority of the rate- 
 payers of such parishes or townships present at a public meeting duly 
 convened, to adopt all or any of such parish roads and highways as 
 the council shall in its discretion consider advisable, and to apply the 
 rates levied and collected by the said council for the repair of the 
 public streets, roads, and highways within such borough in repairing 
 and maintaining such parish roads and highways; provided always, 
 that it shall be competent for such council, previous to adopting such 
 parish roads and highways, to require the provisions contained in any 
 local Act applying to the public streets, roads, and highways of such 
 borough to be complied with. 
 
 By sec. 46, no person through whose land a highway passes, which 
 is to be repaired by the parish, shall become liable for the repair of 
 such highway by erecting fences between such highway and the ad- 
 joining land, if such fences are erected with the consent in writing of 
 the highway board of the district within which such highway is situ- 
 ate, in the case of a place within the jurisdiction of a highway board, 
 and in the case of any other place, with the consent of the surveyor 
 or other authority having jurisdiction over the highway, (c) 
 
 By sec. 3, the word ' parish ' shall include any place maintaining its 
 own highways ; the expressions ' highway district ' and ' highway 
 
 (b) See post, p. 832. (c) As to the liability to repair by reason 
 
 of enclosure, see ante, p. 802.
 
 832 Highway Act, 1864. [book ii. 
 
 board' shall refer only to highway districts formed and highway 
 boards constituted in pursuance of this Act. 
 
 By sec. 4, the 5 & 6 Will. 4, c, 50, is hereinafter distinguished as 
 'the principal Act;' and this Act and the principal Act, and the 
 other Acts amending the principal Act, are hereinafter included under 
 the expression ' the Highway Acts.' 
 
 By sec. 8 of 25 and 26 Vict. c. 61, no objection shall be made at 
 any trial or in any legal proceeding to the validity of any orders or 
 proceedings relating to the formation of a highway district, after the 
 expiration of three calendar months from the date of the publication 
 in the Gazette of the order under which the district is formed ; and 
 the production of a copy of the London Gazette containing a copy 
 of the order of justices forming a highway district shall be receivable 
 in all courts of justice, and in all legal proceedings, as evidence of 
 the formation of the district, and of the matters in the said order 
 mentioned. 
 
 By 27 & 28 Vict. c. 101, s. 12, no order of the justices forming a 
 highway district shall be invalidated by reason of its not being pub- 
 lished in the London Gazette ; and where any reference is made in 
 any section of the 'Highway Act, 1862,' to the date of the publica- 
 tion in the Gazette of the order, such section shall be construed as if 
 the date of the making of the final order under which the district is 
 formed were substituted for ' the date of the publication in the 
 Gazette of the order under which the district is formed ; ' and any 
 copy of the provisional or final order of the justices forming a high- 
 way district, certified under the hand of the clerk of the peace to be a 
 true copy, shall be receivable in all courts of justice and in all legal 
 proceedings as evidence of the formation of the district, and of the 
 matters in the said order mentioned. 
 
 The 27 & 28 Vict. c. 101, amends the above Act, 25 & 26 Vict, 
 c. 61. 
 
 By sec. 1 the Acts hereinafter mentioned may be cited for all pur- 
 poses by the short titles following ; that is to say : — 
 
 The Act 5 & 6 Will. 4, c. 50, by the short title of the 'Highway 
 Act, 1835.' 
 
 The said Act, 25 & 26 Vict. c. 61, by the short title of the ' High- 
 way Act, 1862.' 
 
 This Act, 27 & 28 Vict. c. 101, by the short title of the 'Highway 
 Act, 1864.' 
 
 All the above-mentioned Acts and any Acts passed or to be passed 
 amending the same, shall be included under the short title of ' The 
 Highway Acts.' 
 
 By sec. 2, this Act, so far as is consistent with the tenor thereof, 
 shall be construed as one with the 'Highway Act, 1862.' 
 
 By sec. 3 ' Poor Law Parish ' shall mean a place that separately 
 maintains its own poor. 'Highway Parish' shall mean a place that, 
 after the constitution of a highway district, separately maintains its 
 own highways, and is entitled to return a waywarden or waywardens 
 to the highway board of the district. 'Highway Rate' shall include 
 any rate, whether poor rate or not, out of the produce of which 
 moneys are payable in satisfaction of precepts of a highway board. 
 ' County .' shall include any division of a county that has a separate 
 county treasurer.
 
 chap, xxxii. § ii.] Of Nuisances to Highways. 833 
 
 By sec. 21, when any highway board consider any highway un- 
 necessary for public use, they may direct the district surveyor to 
 apply to two justices to view the same, and thereupon the like (d) 
 proceedings shall be had as where application is made under the 
 ' Highway Act, 1835,' to procure the stopping up of any highway, 
 save only that the order to be made thereupon, instead of directing 
 the highway to be stopped up, shall direct that the same shall cease 
 to be a highway which the parish is liable to repair, and the liability 
 of the parish shall cease accordingly; and for the purpose of such 
 proceedings under this enactment, such variations shall be made in 
 any notice, certificate, or other matter preliminary to the making of 
 such order, as the nature of the case may require : provided, that if 
 at any time thereafter, upon application of any person interested in 
 the maintenance of such highway, after one month's previous notice 
 in writing thereof to the clerk of the highway board for the district 
 in which such highway is situated, it appear to any court of general 
 or quarter sessions of the peace that, from any change of • circum- 
 stances since the time of the making of any such order as aforesaid, 
 under which the liability of the parish to repair such highway has 
 ceased, the same has become of public use, and ought to be kept in 
 repair by the parish, they may direct that the liability of the parish 
 to repair the same, shall revive from and after such day as they may 
 name in their order, and such liability shall revive accordingly as if 
 the first-mentioned order had not been made ; and the said court may 
 by their order direct the expenses of and incident to such application 
 to be paid as they may see fit. 
 
 By sec. 26, any notice in respect of which no other mode of service 
 is provided by the highway board in pursuance of powers in that be- 
 half conferred on them, and any precept, summons, or order issued by 
 the highway board, may be served — 
 
 By delivery of the same personally on the party required to be 
 served ; or 
 
 By leaving the same at the usual or last known place of abode of 
 such party as aforesaid ; or 
 
 By forwarding the same by post as a prepaid letter, addressed to 
 the usual or last known place of abode of such party. 
 
 In proving service of a document by post it shall be sufficient to 
 prove that the document was properly directed, and that it was put 
 as a prepaid letter into the post-office ; and in serving notice on the 
 overseers or the waywardens (if more than one) of any parish, it 
 shall be sufficient to serve the same on any one of such officers in a 
 parish. 
 
 By sec. 46, the justices assembled in petty sessions at their usual 
 place of meeting may exercise any jurisdiction which they are 
 authorized under the Highway Acts or any of them, to exercise in 
 special sessions ; and no justice of the peace shall be disabled from 
 acting as such at any petty or special, or general quarter sessions, in 
 any matter merely on the ground that he is by virtue of his office, a 
 member of any highway board complaining, interested or concerned 
 in such matter, or has acted as such at any meeting of such board. 
 
 (d) See R. v. Surrey (Justices of), 39 L. J. M. C. 145 ; ante, p. 776. 
 VOL. I. — 53
 
 834 Public Health Act, 1875. [book ii. 
 
 By sec. 47, a highway hoard may make certain improvements in the 
 highways within their jurisdiction. 
 
 By sec. 48, the following works shall he deemed to be improve- 
 ments of highways: — 
 
 (1) The conversion of any road that has not been stoned, into a 
 stoned road. 
 
 (2) The widening of any road, the cutting off the corners in any 
 road where hind is required to be purchased for that purpose, the 
 levelling roads, the making any new road and the building or enlar- 
 ging bridges. 
 
 (3) The doing of any other work in respect of highways beyond 
 ordinal \ repairs, essential to placing any existing highway in a proper 
 state of repair. 
 
 By the Public Health Act, 1875, 38 & 39 A^ict. c. 55, s. 144, every 
 urban authority (e) shall within their district, exclusively of any 
 other person, execute the office of and be surveyor of highways, and 
 have exercise and be subject to all the powers, authorities, duties and 
 liabilities of surveyors of highways under the law for the time being 
 in force, save so far as such powers, authorities, or duties are or may 
 be inconsistent with the provisions of this Act ; every urban authority 
 shall also have exercise and be subject to all the powers, authorities, 
 duties, and liabilities, which by the Highway Act, 1835, or any 
 Act amending the same, are vested in and given to the inhabitants in 
 vestry assembled, of any parish within their district. 
 
 All ministerial Acts required by any Act of Parliament to be done 
 by, or to the surveyor of highways, may be done by or to the surveyor 
 of the urban authority, or by or to such other person as they may 
 appoint. 
 
 By sec. 146, any urban authority may agree with any person for 
 the making of roads within their district for the public use, through 
 the lands and at the expense of such person, and may agree that such 
 roads shall become, and the same shall accordingly become on comple- 
 tion, highways maintainable and repairable by the inhabitants at 
 large within their district ; they may also, with the consent of two- 
 thirds of their number, agree with such person to pay, and may ac- 
 cordingly pay, any portion of the expenses of making such roads. 
 
 By sec. 147, any urban authority may agree with the proprietors 
 of any canal, railway or tramway, to adopt and maintain any existing 
 or projected bridge, viaduct or arch within their district, over or under 
 any such canal, railway or tramway, and the approaches thereto, and 
 may accordingly adopt and maintain such bridge, viaduct or arch and 
 approaches, as parts of public streets or roads maintainable and re- 
 pairable by the inhabitants at large within their district; or such 
 authority may themselves agree to construct any such bridge, viaduct 
 or arch at the expense of such proprietors ; they may also, with the 
 consent of two-thirds of their number, agree to pay, and may accord- 
 ingly pay, any portion of the expenses of the construction or altera- 
 
 (e) Sec. 6 of the Act defines urban au- ratione tenures are liable. R. v. Mayor of 
 
 tliority. Nothing in this Act, however, Poole, 19 Q. B. D. 602. See as to indicting 
 
 makes the urban authority liable to indict- such an authority, 41 & 42 Vic c. 77, s. 10, 
 
 ment for non-repair in the same sense ;is that ami R. v. Mayor of Wakefield, 20 Q. B. D. 
 
 in which the parish or other persons liable 810 ; post, p. 838.
 
 chap. xxxn. § ii.] Of Nuisances to Highways. 835 
 
 tion of any such bridge, viaduct or arch, or of the purchase of any 
 adjoining lands required for the foundation and support thereof, or for 
 the approaches thereto. 
 
 By sec. 148, any urban authority may by agreement with the 
 trustees of any turnpike road, or with any person liable to repair any 
 street or road, or any part thereof, or with the surveyor of any 
 county bridge, take on themselves the maintenance, repair, cleansing 
 or watering of any such street or road, or any part thereof, or of any 
 road over any county bridge, and the approaches thereto, or of any 
 part of the said streets or roads within their district, and may remove 
 any turnpike-gates, toll-gates or bars which may be situated within 
 their district, and may erect other turnpike-gates, toll-gates or bars in 
 lieu thereof, on such terms as the urban authority and such trustees, 
 or person or surveyor, as aforesaid may agree on : 
 Provided, 
 
 That where any mortgage debt is charged on the tolls of any 
 such turnpike road, no agreement shall be made for the re- 
 moval of any of the toll-gates or bars thereon, unless with the 
 previous consent in writing of a majority of at least two 
 thirds in value of the mortgagees ; and 
 That where the terms arranged include any annual or other pay- 
 ments from such urban authority to the trustees of any such 
 turnpike road, then the payments may be secured on any fund 
 or rate applicable by such authority to any of the purposes of 
 this Act, in the same manner as other charges on any such 
 fund or rate are authorized by this Act. 
 Any executors, administrators, guardians, trustees or committee 
 of the estate of any idiot or lunatic, who are as such for the 
 time being entitled to any money charged or secured on the 
 tolls of any such turnpike road, may consent to any such 
 agreement as aforesaid, as fully as if they respectively were so 
 entitled in their own right, discharged of all trusts in respect 
 thereof, and all executors, administrators, guardians, trustees 
 and committees so consenting, are hereby severally indemnified 
 for so doing. 
 By sec. 149, all streets, being or which at any time become high- 
 ways repairable by the inhabitants at large within any urban district, 
 and the pavements, stones snd other materials thereof, and all build- 
 ings, implements and other things provided for the purposes thereof, 
 shall vest in (/) and be under the control of the urban authority. 
 The urban authority shall from time to time cause all such streets 
 to be levelled, paved, metalled, flagged, channelled, altered, and re- 
 paired as occasion may require ; they may from time to time cause the 
 soil of any such street to be raised, lowered or altered as they may 
 think fit, and may place and keep in repair fences and posts for the 
 safety of foot passengers. 
 
 Any person who, without the consent of the urban authority, wil- 
 fully displaces or takes up, or who injures the pavement, stones, 
 materials, fences or posts of, or the trees in any such street, shall 
 be liable to a penalty not exceeding five pounds, and to a further 
 
 (/) See Coverdale r. Charlton, 4 Q. P». T>. 785 ; Wandsworth Board of Works v. 
 D. 104 ; Rolls v. S. George's Vestry, 14 Ch. United Telephone Co., 13 Q. B. D. 904.
 
 836 Highways Act, 1878. [book ii. 
 
 penalty not exceeding five shillings for every square foot of pavement, 
 stones or other materials so displaced, taken up or injured ; he shall 
 also be liable in the case of any injury to trees, to pay to the local 
 authority such amount of compensation as the Court may award. 
 
 By sec. L52, when any street within any urban district, not being a 
 highway repairable by the inhabitants at large, has been sewered, 
 levelled, paved, flagged, metalled, channelled, and made good and pro- 
 vided with proper means of lighting, to the satisfaction of the urban 
 authority, such authority may, if they think fit, by notice in writing, 
 put up in any part of the street, declare the same to be a highway, 
 and thereupon the same shall become a highway repairable by the 
 inhabitants at large ; and every such notice shall be entered among 
 the proceedings of the urban authority. 
 
 Provided that no such street shall become a highway so repairable, 
 if within one month after such notice has been put up, the proprietor, 
 or the majority in number of proprietors of such street, by notice in 
 writing to the urban authority, object thereto, and in ascertaining 
 such majority, joint proprietors shall be reckoned as one proprietor. 
 
 By the Highways and Locomotives (Amendment) Act, 1878, 41 & 
 42 Vict, c 77: — 
 
 By sec. 5. (1.) 'From and after the commencement of the order 
 declaring a rural sanitary authority entitled to exercise the powers 
 of a highway board within their district, the following consequences 
 shall ensue : — 
 
 All such property, real or personal, including all interests, ease- 
 ments and rights, in, to and out of property real and personal, and 
 including things in action, as belongs to or is vested in or would 
 but for such order have belonged to or been vested in the highway 
 board, or any surveyor or surveyors of any parish forming part of 
 the district, shall pass to and vest in the rural sanitary authority for 
 all the estate and interest of the highway board, or of such surveyor 
 or surveyors, but subject to all debts and liabilities affecting the 
 same : 
 
 All debts and liabilities incurred in respect of any property trans- 
 ferred to the rural sanitary authority may be enforced against that 
 authority to the extent of the property transferred : 
 
 All such powers, rights, duties, liabilities, capacities, and incapacities 
 (except the power of obtaining payment of their expenses by the 
 issue of precepts in manner provided by the Highway Acts, or the 
 power of making, assessing, and levying highway rates) as are vested 
 in or attached to or would but for such order have become vested 
 in or attached to the highway board, or any surveyor or surveyors 
 of any parish forming part of the district, shall vest in and attach 
 to the rural sanitary authority : 
 
 All property by this Act transferred to the rural sanitary authority 
 shall be held by them on trust for the several parishes for the benefit 
 of which it was held previously to such transfer. 
 
 (2.) ' If at any time after a rural sanitary authority has become 
 invested with the powers of a highway board in pursuance of this 
 Act, the boundaries of the district of such authority are altered, the 
 powers and jurisdiction of such authority in their capacity of high- 
 way board shall be exercised within such altered district; and on
 
 chap. xxxn. § II.] Of Nuisances to Highways. 837 
 
 the application of any authority or person interested the Local Govern- 
 ment Board may by order provide for the adjustment of any accounts, 
 or the settlement of any doubt or difference so far as relates to high- 
 ways consequent on the alteration of the boundaries of such rural 
 sanitary district. 
 
 (3.) 'All expenses incurred by a rural sanitary authority in the per- 
 formance of their duties as a highway board shall be deemed to be 
 general expenses of such authority within the meaning of the Public 
 Health Act, 1875.' 
 
 By sec. 6. ' Any two or more highway boards may unite in appointing 
 and paying the salary of a district surveyor, who shall in relation 
 to the district of each of the boards by whom he is appointed have 
 all the powers and duties of a district surveyor under the Highway 
 Acts.' 
 
 By sec. 7. ' All expenses incurred by any highway board in maintain- 
 ing and keeping in repair the highways of each parish within their 
 ■district, and all other expenses legally incurred by such board, shall, 
 notwithstanding anything contained in the Highway Acts, on and 
 after the twenty-fifth day of March one thousand eight hundred and 
 seventy-nine be deemed to have been incurred for the common use 
 or benefit of the several parishes within their district, and shall be 
 charged on the district fund : Provided, that if a highway board 
 think it just, by reason of natural differences of soil or locality, 
 or other exceptional circumstances, that any parish or parishes with- 
 in their district should bear the expenses of maintaining its or their 
 own highways, they may (with the approval of the county authority 
 or authorities of the county or counties within which their district, 
 or any part thereof, is situate) divide their district into two or more 
 parts, and charge exclusively on each of such parts the expenses 
 payable by such highway board in respect of maintaining and keeping 
 in repair the highways situate in each such part ; so nevertheless, 
 that each such part shall consist of one or more highway parish or 
 highway parishes.' 
 
 By sec. 10. ' Where complaint is made to the county authority that 
 the highway authority of any highway area within their jurisdiction 
 has made default in maintaining or repairing all or any of the high- 
 ways within their jurisdiction, the county authority, if satisfied after 
 due inquiry and report by their surveyor that the authority has been 
 guilty of the alleged default, shall make an order limiting a time 
 for the performance of the duty of the highway authority in the 
 matter of such complaint. 
 
 If such duty is not performed by the time limited in the order, and 
 the highway authority fail to show to the county authority sufficient 
 cause why the order has not been complied with, the county authority 
 may appoint some person to perform such duty, and shall by order 
 direct that the expenses of performing the same, together with the 
 reasonable remuneration of the person appointed for superintending 
 such performance, shall be paid by the authority in default, and any 
 order made for payment of such expenses and costs may be removed 
 into the High Court of Justice, and be enforced in the same manner 
 as if the same were an order of such court. 
 
 Any person appointed under this section to perform the duty of
 
 838 Highways Ad, 1878. [book ii. 
 
 a defaulting highway authority shall, in the performance and for 
 the purpose of such duty, be invested with all the powers of such 
 authority other than the powers of making rates or levying contri- 
 butions by precept, and the county authority may from time to time, 
 by order, change any person so appointed. 
 
 Where an order has been made by a county authority for the 
 repair of a highway on a highway authority alleged to be in default, 
 if such authority, within ten days after service on them of the order 
 of the county authority, give notice to the clerk of the peace that 
 they decline to comply with the requisitions of such order until their 
 liability to repair the highway in respect to which they are alleged 
 to have made default has been determined by a jury, it shall be the 
 duty of the county authority either to satisfy the defaulting authority 
 by cancelling or modifying in such manner as the authority may 
 desire the order of the county authority, or else to submit to a jury 
 the question of the liability of the defaulting authority to repair 
 the highway. 
 
 If the county authority decide to submit the question to a jury 
 they shall direct a bill of indictment to be preferred to the next 
 practicable assizes to be holden in and for their county, with a view 
 to try the liability of the defaulting authority to repair the highway. 
 Until the trial of the indictment is concluded the order of the county 
 authority shall be suspended. On the conclusion of the trial, if the 
 jury find the defendants guilty, the order of the county authority 
 shall forthwith be deemed to come into force ; but if the jury acquit 
 the defendants the order of the county authority shall forthwith 
 become void, (g) 
 
 The costs of the indictment, and of the proceedings consequent 
 thereon, shall be paid by such parties to the proceedings as the 
 court before whom the case is tried may direct. Any costs directed 
 to be paid by the county authority shall be deemed to be expenses 
 properly incurred by such authority, and shall be paid accordingly 
 out of the county rate ; and any costs directed to be paid by the 
 highway authority shall be deemed to be expenses properly incurred 
 by such authority in maintenance of the roads within their juris- 
 diction, and shall be paid out of the funds applicable to the main- 
 tenance of such roads.' 
 
 By sec. 13, disturnpiked roads are to become main roads, and half 
 the expense of maintenance is to be contributed out of county 
 rate. (7?) 
 
 By sec. 14. ' The following areas shall be deemed to be highway 
 areas for the purposes of this Act; (that is to say,) 
 
 (1.) Urban sanitary districts : 
 
 (2.) Highway districts: 
 
 (3.) Highway parishes not included within any highway district 
 or any urban sanitary district.' 
 
 By sec. 15. 'Where it appears to any highway authority that any 
 
 (g) An indictment under this section {h) As to the duty of the County Council 
 
 will lie against an urhan sanitary authority in regard to such roads, see 51 & 52 Vic. c. 
 
 acting as the highway authority of the dis« 41, s. 11. In re Warminster Local Board, 
 
 trict, for non-repair of the highway. R. v. 25 Q. B. D. 450. 
 Mayor of Wakefield, 20 Q. B. D. 810.
 
 chap, xxxii. § ii.] Of Nuisances to Highways. 839 
 
 highway within their district ought to become a main road by reason 
 of its being a medium of communication between great towns, or a 
 thoroughfare to a railway station, or otherwise, such highway authority 
 may apply to the county authority for an order declaring such road, 
 as to such parts as aforesaid, to be a main road; and the county 
 authority, if of opinion that there is probable cause for the applica- 
 tion, shall cause the road to be inspected, and, if satisfied that it 
 ought to be a main road, shall make an order accordingly. 
 
 A copy of the order so made shall be forthwith deposited at the 
 office of the clerk of the peace of the county, and shall be open to 
 the inspection of persons interested at all reasonable hours; and the 
 order so made shall not be of any validity unless and until it is con- 
 firmed by a further order of the county authority made within a 
 period of not more than six months after the making of the first- 
 mentioned order.' 
 
 By sec. 16 ' If it appears to a county authority that any road within 
 their county which, within the period between the thirty-first day 
 of December one thousand eight hundred and seventy and the date 
 of the passing of this Act, ceased to be a turnpike road ought not to 
 become a main road in pursuance of this Act, such authority shall, 
 before the first day of February one thousand eight hundred and 
 seventy-nine, make an application to the Local Government Board 
 for a provisional order declaring that such road ought not to become 
 a main road. 
 
 Subject as aforesaid, where it appears to a county authority that 
 any road within their county which has become a main road in pur- 
 suance of this Act ought to cease to be a main road and become an 
 ordinary highway, such authority may apply to the Local Government 
 Board for a provisional order declaring that such road has ceased to 
 be a main road and become an ordinary highway. 
 
 The Local Government Board, if of opinion that there is probable 
 cause for an application under this section, shall cause the road to 
 be inspected, and if satisfied that it ought not to become or ought 
 to cease to be a main road and become an ordinary highway shall 
 make a provisional order accordingly, to be confirmed as hereinafter 
 mentioned. 
 
 All expenses incurred in or incidental to the making or confirma- 
 tion of any order under this section shall be defrayed by the county 
 authority applying for such order.' 
 
 By sec. 17. ' Where a turnpike road subject to one trust extends into 
 divers counties, such road, for the purposes of this Act, shall lie 
 treated as a separate turnpike road in each county through which 
 it passes.' 
 
 By sec. 19. 'Where a highway district is situate in more than one 
 county, the provisions of this Act, with respect to the expenses of 
 the maintenance of main roads, shall apply as if the portion of such 
 district situate in each county were a separate highway district in 
 that county.' 
 
 By sec. 20. 'Notwithstanding the provisions of this Act, in the case 
 oi any county in which certain of the bridges within the county are 
 repairable by the county at large, and others are repairable by the 
 several hundreds within the county in which they are situate., it
 
 840 Highways Act, 1878. [book ii. 
 
 shall be lawful for the county authority from time to time, by order, 
 to declare any main road or part of a main road within their county 
 to be repairable to the extent only and in manner provided by section 
 thirteen of this Act, either by the county or by the hundred in which 
 such main road or part is situate, as they think fit; and where a 
 main road or part thereof is declared to be repairable by a hundred, 
 the expense of repairing the same shall, to the extent to which but 
 for this section the expense or any contribution towards the expense 
 of repairing the same would be repayable out of the count}- rate, be 
 repayable out of a separate rate which shall be raised and charged 
 in the like manner as the expenses of repairing the hundred bridges 
 in the same hundred would have been raised and charged. 
 
 By sec. 23, power is given to the road authority to recover sum- 
 marily the expenses of extraordinary traffic front any person by 
 whose order such traffic has been conducted. 
 
 By sec. 24. ' If any authority liable to keep any highway in repair 
 is of opinion that so much of such highway as lies within any parish 
 situate in a petty sessional division is unnecessary for public use, 
 and therefore ought not to be maintained at the public expense, such 
 authority (in this section referred to as 'the applicant authority') 
 may apply to the court of summary jurisdiction of such petty 
 sessional division to view by tw r o or more justices, being members 
 of the court, the highway to which such application relates, and on 
 such view being had, if the court of summary jurisdiction is of 
 opinion that the application ought to be proceeded with, it shall by 
 notice in writing to the owners or reputed owners and occupiers 
 of all lands abutting upon such highway, and by public notice 
 appoint a time and place, not earlier than one month from the date 
 of such notice, at which it will be prepared to hear all persons 
 objecting to such highway being declared unnecessary for public 
 use, and not repairable at the expense of the public. 
 
 On the day and at the place appointed, the court shall hear any 
 persons objecting to an order being made by the court that such high- 
 way is unnecessary for public use and ought not to be repairable at the 
 public expense, and shall make an order either dismissing the appli- 
 cation or declaring such highway unnecessary for public use, and 
 that it ought not to be repaired at the public expense. 
 
 If the court make such last-mentioned order as aforesaid, the 
 expenses of repairing such highway shall cease to be defrayed out 
 of any public rate. 
 
 Public notice of the time and place appointed for hearing a case 
 under this section shall be given by the applicant authority as 
 follows ; that is to say, 
 
 (1.) By advertising a notice of the time and place appointed for 
 the hearing and the object of the hearing, with a description of the 
 highway to which it refers, in some local newspaper circulating in 
 the district in which such highway is situate once at least in each of 
 the four weeks preceding the hearing ; and 
 
 (2.) By causing a copy of such notice to be affixed, at least fourteen 
 clays before the hearing, to the principal doors of every church and 
 chapel in the parish in which such highway is situate, or in some 
 conspicuous position near such highway.
 
 chap. xxxn. § ii.] Of Nuisances to Highways. 841 
 
 And the application shall not be entertained by the court until 
 the fact of such public notice having been given is proved to its 
 satisfaction. 
 
 If at any time after an order has been made by a court of summary 
 jurisdiction under this section, upon application of any person inter- 
 ested in the maintenance of the highway in respect of which such 
 order has been made, after one month's previous notice in writing 
 thereof to the applicant authority, it appears to the court of quarter 
 sessions that from any change of circumstances since the time of the 
 making of any such order as aforesaid such highway has become of 
 public use, and ought to be maintained at the public expense, the 
 court of quarter sessions may direct that the liability of such high- 
 way to be maintained at the public expense shall revive from and 
 after such day as they may name in their order, and such highway 
 shall thenceforth be maintained out of the rate applicable to pay- 
 ment of the expenses of repairing other highways repairable by the 
 applicant authority ; and the said court of quarter sessions may by 
 their order direct the expenses of and incident to such application to 
 be paid as they may see fit. 
 
 Any order of a court of summary jurisdiction under this section 
 shall be deemed to be an order from which an appeal lies to a court 
 of quarter sessions.' (a) 
 
 S. 26 gives power to the county authority to make bye-laws which 
 by s. 35 require in order to be valid to be confirmed by the local 
 Government Board. 
 
 By s. 38. ' In this Act — 
 
 " Highway authority " means as respects an urban sanitary district 
 the urban sanitary authority, and as respects a highway district the 
 highway board, and as respects a highway parish the surveyor or 
 surveyors or other officers performing similar duties : 
 
 " Kural sanitary district " and " rural sanitary authority " mean 
 respectively the districts and authorities declared to be rural sanitary 
 districts and authorities by the Public Health Act, 1875 : 
 
 "Urban sanitary district" and "urban sanitary authority" mean 
 respectively the districts and authorities declared to be urban sanitary 
 districts and authorities by the Public Health Act, 1875, except that 
 for the purposes of this Act no borough having a separate court of 
 quarter sessions, and no part of any such borough, shall be deemed to 
 be or to be included in any such district, and where part of a parish 
 is included in such district for the purpose only of the repairs of the 
 highways such part shall be deemed to be included in the district for 
 the purposes of this Act.' 
 
 S. 25 of the Local Government Act, 1894 (56 & 57 Vic. c. 73), 
 transfers to the district council of every rural district all the powers, 
 duties, and liabilities of the rural sanitary authority in the district, 
 and ' highway boards shall cease to exist, and rural district councils 
 shall be the successors of the rural sanitary authority and highway 
 authority, and shall also have as respects highways all the powers, 
 duties, and liabilities of an urban sanitary authority under ss. 144 to 
 148 of the Public Health Act, 1875, and those sections shall apply in 
 
 (a) The consent of the Parish Council is also necessary. 56 & 57 Vic. c. 73, s. 13.
 
 842 Public Rivers. [book ii. 
 
 the case of a rural district and of the council thereof in like manner 
 as in the case of an urban district and an urban authority,' and it 
 further provides that where a highway repairable ratione tenurae 
 appears on the report of a competent surveyor not to be in proper 
 repair, and the person liable to repair the same fails when requested 
 to do so by the district council to place it in proper repair, the district 
 council may place the highway in proper repair and recover from such 
 person the necessary expenses of so doing. 
 
 By s. 26 it is to be the duty of the district council to protect all 
 public rights of way, and to prevent as far as possible all stopping or 
 obstruction of such rights, and power is given them to take proceed- 
 ings for this purpose. 
 
 Sec. III. 
 Of Nuisances to Public Rivers. 1 
 
 In books of the best authority, a river common to all men is called 
 a highway : (i) and if it be considered as a highway, any obstructions, 
 by which its course and the use of it as a highway by the King's 
 subjects are impeded, will fall within the same principles as those 
 which relate to public roads, and which have been considered in the 
 preceding section of this chapter. The public are not entitled at com- 
 mon law to tow on the banks of ancient navigable rivers. (J) 
 
 The term, navigable, as applied to a river, is a relative and compre- 
 hensive term, containing within it all such rights upon the waterway 
 as, with relation to the -circumstances of each river, are necessary for 
 the full and convenient passage of vessels and boats along it. There- 
 fore, where a river was a tidal river, and so shallow at certain states 
 of the tide that a vessel could not float, but necessarily grounded, it 
 was held that the jury were rightly directed that a navigable river 
 was so at all times, and that a person might go upwards or down- 
 wards, though he might not be able to reach the port or the deep 
 water in one tide or without grounding, and that even if such ground- 
 ing subjected him to compensate for injury done, that did not affect 
 the nature of the right in respect to the time of enjoyment, (k) 
 
 It has been before observed, that a highway may be changed by 
 the act of God ; and upon the same principle it has been holden, that 
 if a water, which has been an ancient highway, by degrees change its 
 course, and go over different ground from that whereon it used to 
 run, yet the highway continues in the new channel, in the same 
 manner as in the old. (I) It has been held that the soil of a navi- 
 
 (/) 1 Hawk. P. C. c. 70, s. 1, citing 27 [&) Mayor of Colchester v. Brooke, 7 Q. 
 
 Ass. 23 ; Fitz. 279. 2 Com. Dig. 397. B. 339. 
 
 AVilliams v. Wilcox, 8 A. & E. 314. And (/) 1 Hawk. P. C. c. 76, s. 4. 22 Ass. 
 
 see Anon. Loft. 556. 93. 1 Roll. Abr. 390. 4 Vin. Ab. Chimin 
 
 (./) Ball v. Herbert, 3 T. R. 253. Winch (A.). See R. v. Betts, post, p. 847. 
 v. The Conservators of the River Thames, 
 41 L. J. C. P. 241. 
 
 American Note. 
 
 1 See Arnold v. Mundy, 1 Halst. Rep. 1. 198. P. i». Piatt, 17 Johns. Rep. 195. C. v. 
 P. v. Vanderbilt, 28 N. Y. 396. Beach v. Breed, 4 Pick. 460. 
 P., 11 Mich. 106. S.v. Freepoit, 43 Maine,
 
 chap. xxxu. § in.] Of Nuisances to Highways. 843 
 
 gable river prima facie, though not necessarily, belongs to the King ; 
 and is not by presumption of law in the owners of the adjoining 
 lands, (m) 
 
 The public right of navigation in a river or creek may be extin- 
 guished either by Act of Parliament or writ of ad quod damnum and 
 inquisition thereon, or under certain circumstances by commissioners 
 of sewers, or by natural causes, such as the recess of the sea, or the 
 accumulation of mud or sand. Where, therefore, a public road, 
 obstructing a channel once navigable, has existed for so long a time 
 that the state of the channel, at the time when the road was made, 
 cannot be proved, in favour of the existing state of things it must be 
 presumed that the right of navigation was extinguished in one of the 
 modes before mentioned, and the road cannot be removed as a nui- 
 sance to the navigation. (>i) Every creek or river, -into which the 
 tide flows, is not on that account necessarily a public navigable 
 channel, although sufficiently large for that purpose, but the flowing 
 of the tide into such a creek or river is strong prima facie evidence 
 that it is a public navigation, (o) 
 
 It is a common nuisance to divert part of a public navigable 
 river, whereby the current of it is weakened and made unable 
 to carry vessels of the same burthen as it could before, (p) And 
 the laying timber in a public river is as much a nuisance, where the 
 soil belongs to the party, as if it were not his, if thereby the 
 passage of vessels is obstructed, (q) The placing a floating dock 
 in a public river has been also held to be a nuisance, though 
 beneficial in repairing ships, (r) So where a wooden jetty was 
 erected on piles driven into the bed of the river Thames and 
 extended considerably beyond high-water mark, but not quite to 
 low-water mark, it was held that this was a nuisance to the navi- 
 gation, (s) So a dummy or flush-decked barge fastened by means 
 of chains to a wharf and to a mooring stone sunk into the bed of 
 a navigable river, so as to rise and fall with the tide, for the con- 
 venience of embarking and disembarking passengers from vessels, 
 and without which it would have been impossible for boats to land 
 or embark passengers at the wharf at low water, is a nuisance, (t) 
 And the bringing a great ship into Billingsgate dock, which, 
 though a common dock, was common only for small ships coming 
 with provisions to the markets in London appears to have been 
 considered as a nuisance, in the same manner as if a man were so 
 to use a common pack and horseway with his cart, as to plough it up, 
 and thereby render it less convenient to riders, (u) Where an Act 
 authorizes a company to erect a bridge over a public navigable river, 
 
 (mi) R. v. Smith, Dougl. 441; but this Mayor of Lynn v. Taylor, Cowp. 86, and 
 
 seems not free from doubt. See Williams v. Miles v. Rose, 5 Taunt. 706. 
 Wilcox, post, p. 851. R. v. Wharton, 12 ( p) 1 Hawk. P. C. c. 75, s. 11. 
 
 Mod. 610, as to private rivers. As to right (q) Bac. Abr. tit. Nuisance (A.), 
 
 of soil in a moiety of a creek, Lord v. Com- (r) Anon. Surrey Ass. at Kingston, 17S5, 
 
 missioners for the City of Sydney, 12 Moore, cited in the notes to 1 Hawk. P. C. c. 75, 
 
 P. C. 473, cited 10 C. B. (N. S.) 414. As s. 11. 
 
 to land left by a river, Ford v. Lacy, 7 H. & (s) Dimes v. Petley, 15 Q. B. 276. 
 
 N. 151. (0 Eastern Counties R. Co. v. Dorling, 
 
 (n) R. v. Montague, 4 B. & C. 599. 5 C. B. (X. S.) 821. 
 
 (o) Ibid., per Bayley, J., citing The (u) R. v. Leech, 6 Mod. 145. Bac Abr. 
 
 tit. Nuisance (A.).
 
 844 Public Rivers. [book ii. 
 
 and they erect it in such a manner as to impede the navigation, and 
 not in compliance with the provisions of the Act, they are guilty of 
 nuisance, (v) And the erection of weirs across rivers was reprobated 
 in the earliest periods of our law. ' They were considered as public 
 nuisances. The words of Magna Charta are, that all weirs from 
 henceforth shall be utterly pulled down by Thames and Medway, 
 and through all England, &c. And this was followed up by subse- 
 quent Acts treating them as public nuisances, forbidding the erection 
 of new ones, and the enhancing, straightening, or enlarging, of those 
 which had aforetime existed.' (w) Upon the principle, therefore, which 
 has been before stated (x) that the public have an interest in the sup- 
 pression of public nuisances, though of long standing, it was held that 
 a right to convert a brushwood into a stone weir (whereby fish would 
 be prevented from passing except in flood times), was not evidenced 
 by showing that forty years ago two-thirds of it had been so converted 
 without interruption. (//) So in a more recent case it was holden, that 
 twenty years' possession of the water at a given level was not conclu- 
 sive as to the right. Abbott, C. J., said, 'If it be admitted that this 
 is a public navigable river, and that all his Majesty's subjects 
 had a right to navigate it, an obstruction to such navigation for a 
 period of twenty years would not have the effect of preventing his 
 Majesty's subjects from using it as such.'(«) But where there was a 
 grant of wreck from Henry 2, to the Abbey of Cerne by all their lands 
 upon the sea, confirmed by inspeximus by Henry 8, and also a grant 
 from Henry 8, of the island of Brownsea and the shores thereof, 
 belonging to the late monastery of Cerne, together with wreck, &c. ; 
 and there was also evidence that between forty and fifty years 
 ago the proprietor of the island of Brownsea raised an embankment 
 across a small bay, and had ever since asserted an exclusive right to 
 the soil without opposition ; it was held, that, although the usage of 
 forty years' duration could not of itself establish such exclusive right, 
 or destroy the rights of the public, yet it was evidence from which 
 prior usage to the same effect might be presumed, and which, coupled 
 with the general words contained in the grants, served to establish 
 such right. If, however, it had appeared, that the public had a right 
 to fish over the place in question, prior to the forty years, and that 
 the raising the bank was an act of usurpation, the exclusive right 
 would not have been established, (a) 
 
 At common law every holder of lands adjoining to a river or brook 
 has a right to raise the banks of the river or brook, upon his own 
 lands so as to confine the flood-water within the banks, provided he 
 does not thereby occasion injury to the lands or property of other 
 persons; and if such right has been exercised before the passing of an 
 Act authorizing the making of a public navigable canal, the exercise 
 of such right after the making of the canal will not be a nuisance, 
 although it may be injurious to the canal, as the construction of the 
 canal may be considered as having taken place subject to the enjoy- 
 ment of such rights as the landholders possessed when the Act passed, 
 except so far as the Act may have restrained such rights. 
 
 (';) Hole w. Sittinjjhourne and Sheerness (x) Ante, p. 755. 
 
 R. Co., 6 H. & X. 488. (y) Weld v. Hornby, swpra.. 
 
 [w) Bv Lord Ellenborough, C. J., in (z) I Vooght v. Winch, 2 B. & A. 662. 
 
 Weld v. Hornby, 7 East, 195.' (a) Chad v. Tilsed, 5 Moore, 185.
 
 chap, xxxii. § in.] Of Nuisances to Highways. 845 
 
 Upon an indictment for a nuisance to a public canal navigation 
 established by Act of Parliament, it was found by a special verdict 
 that the canal was carried across a river and the adjoining valley by 
 means of an aqueduct and an embankment, in which were several 
 
 arches and culverts: that a brook fell into the river above its point 
 of intersection with the canal, and that in times of flood the water, 
 which was then penned back into the brook, overflowed its banks, and 
 was carried, by the natural level of the country, to the above-mentioned 
 arches, and through them to the river, doing, however, much mischief 
 to the lands over which it passed; that except for the nuisance after- 
 mentioned, the aqueduct would be sufficiently wide for the passage of 
 the river at all times but those of high flood, notwithstanding the 
 improved drainage of the country, which had increased the bod}' of 
 the water ; that the defendants, occupiers of lands adjoining "the 
 river and brook, had for the protection of their lands, subsequently 
 to the making of the canal, aqueduct, and embankment, created, or 
 heightened, certain artificial banks, called fenders, on their respective 
 properties, so as to prevent the flood- water from escaping as aforesaid, 
 and that the water had consequently, in time of flood, come down in 
 so large a body against the aqueduct and canal banks as to endanger 
 them, and obstruct the navigation ; that the fenders were not unneces- 
 sarily high, and that, if they were reduced, many hundred acr£s of 
 land would again be exposed to inundation. It was held, by the 
 King's Bench, that the defendants were not justified under these cir- 
 cumstances, in altering for their own benefit the course, in which the 
 flood-water had been accustomed to run ; that there was no difference 
 in this respect between flood-water and an ordinary stream ; that an 
 action on the case would have lain at the suit of an individual for 
 such diversion, and consequently that an indictment lay where the 
 act affected the public, (b) But the Court of Exchequer Chamber, 
 although they agreed in the principle that the ancient course and out- 
 let of the flood-water had been obstructed by the wrongful raising 
 from time to time of the fenders by the defendants, upon which the 
 judgment of the King's Bench proceeded, held that the special verdict 
 ought to have found — 1st, whether the raising fenders was an ancient 
 and rightful usage, or whether it had been commenced since the con- 
 struction of the canal. For there was no doubt that at common law 
 the landholders would have the right to raise the banks of the river 
 and brook from time to time, as it became necessary, upon their own 
 lands, so as to confine the flood-water within the banks, and to pre- 
 vent it from overflowing their own lands ; with this single restriction, 
 that they did not thereby occasion any injury to the lands or property 
 of other persons. And if this right had actually been exercised and 
 enjoyed by them before the passing of the Act, then the construction 
 of the aqueduct and embankment might be considered as having taken 
 place subject to the enjoyment of such rights as the landholders pos- 
 sessed at the time of passing the Act, unless so far as the Act might 
 have restrained the exercise of such rights. 2nd, whether the course 
 
 (b) R. v. Trafford, 1 B. & Ad. 874. sance was the result of all those acts jointly, 
 
 The jury also found that the acts creating the defendants were rightly joined in one 
 
 the nuisance were done hy the defendants indictment, which stated the acts to have 
 
 severally, and it was held that as the nui- been several.
 
 846 Public Pavers. [book ii. 
 
 described by the special verdict to have been taken by the flood-water 
 was, or was not, the ancient and rightful course. And, 3rd, whether 
 or not the raising of the fenders to their present height had become 
 necessary in consequence of the construction of the aqueduct, (c) 
 
 It is no defence to an indictment for a nuisance in a navigable 
 river and port to prove that, although the work be in some degree 
 a hindrance to navigation, it is advantageous, in a greater degree, 
 to other uses of the river. Where, therefore, a causeway had been 
 made in the river Medina, which was an inconvenience to the 
 navigation, as small vessels were much obstructed in making their 
 way up with the tide, but it was a great benefit to the public: first, 
 in launching and landing boats more readily ; secondly, steam-boats 
 and other vessels could approach where they could not before ; 
 thirdly, vessels obtained shelter from the quay ; and the jury found 
 it to be a nuisance, but added that the inconvenience was counter- 
 balanced by the public benefit arising from the alteration ; it was 
 held that this finding amounted to a verdict of guilty, (d) 
 
 On an indictment for a nuisance, in the navigable river Itchen, 
 it appeared that a wharf was built between high and low-water 
 mark, and projected over a portion of the river on which boats 
 formerly passed ; before its erection there was no means of unloading 
 trading vessels in the river, except by lightening them in the middle 
 of the stream and then getting them at high w r ater on to the mud 
 between high and low-water mark ; but since its erection such vessels 
 have been unloaded at it, and thus the centre of the river was kept 
 clear and the general navigation improved ; but Wightman, J., left 
 it to the jury to say whether the wharf itself occasioned any im- 
 pediment whatever to the navigation of the river by any description 
 of vessels or boats, and told them that they weie not to take into 
 consideration the circumstance that a benefit had resulted to the 
 general navigation of the river by the said channel being kept 
 clear, (c) But there may be cases where the injury to the public 
 is too small to support an indictment. Upon the trial of an indict- 
 ment for a nuisance to a harbour by erecting and continuing piles 
 and planking in the harbour, and thereby obstructing it and render- 
 ing it insecure, it was found by a special verdict, that ' by the defend- 
 ant's works, the harbour is in some extreme cases rendered less 
 secure ; ' and it was held that the defendant could not be made 
 criminally responsible for consequences so slight, uncertain, and rare, 
 as were stated by this verdict to result from his works. (/) 
 
 (c) Trafford . Regem, 8 Bingh. R. 204. the ' nuisance ' was so slight, rare and un- 
 
 (d) R. v. Ward, 4 Ad. & E. 384 ; 6 N. & certain, that the defendant ought not to be 
 M. 38, overruling R. v. Russell, 6 B. & C. made criminally liable for it, they should 
 566; 9 D. & R 566. See R. v. Morris, 1 acquit him, and the jury said that they con- 
 B. & Ad. 441. sidered the erection, ' although a nuisance, 
 
 (<-) R. v. Randall, C. & M. 496. White was not sufficiently so to render the defend- 
 
 v. Phillips, 15 C. B. (N. S.) 245. ant criminally liable,' and thereon an acquit- 
 
 (/) R. v. Tindall, 6 A. & E. 143 ; 1 N. tal was entered; it was held by Coleridge 
 & ?. 719. In R. v. Russell, 3 E. & B. 942, and Crompton, J.J., and semble by Lord 
 on the trial of an indictment for obstruct- Campbell, C. J., that the charge was to til- 
 ing a navigable piece of water, the jury understood as meaning, not that a party 
 were asked whether they thought the erec- may legally commit a small nuisance, but that 
 tion would prove a ' material nuisance," in an obstruction might be so insignificant as 
 which case they were to find a verdict of not to constitute a nuisance ; and that the 
 guilty; but were told that if they thought jury must be understood as finding that the
 
 chap, xxxii. § in.] Of Nuisances to Highways. 847 
 
 An Act recited that the river Witham was formerly navigable 
 from Lincoln to the sea, but that by sand and silt brought in by the 
 tide the outfall had been greatly obstructed, and powers were given 
 to commissioners to restore the navigation, and they were authorized 
 to make a new cut through lands adjoining the river, and the navi- 
 gation so made was to be open to all persons paying certain tolls: 
 the commissioners were also authorized by this and another Act to 
 build bridges under certain regulations. The cut was made, and a 
 more direct channel thereby created, through which the waters of 1 he 
 river passed to the sea. The powers of the commissioners were 
 afterwards vested by another Act in a company, who built a bridge 
 over the cut, not according to the regulations of the Act, upon piles 
 fixed in the bed of the cut, and its piers occupied part of the breadth 
 of the river ; the jury were told that this was a public highway, and 
 were desired to say whether or not the construction of the bridge was 
 a nuisance to the navigation of the river, and they answered that 
 they did not consider it to be an obstruction to the navigation ; and 
 it was held that there was no doubt that this was a public river ; 
 that the cut, which merely straightened the course, was in the same 
 situation as the original channel, and the public had the same rights 
 over it as they had over the original channel ; and that if the bridge 
 had been so built as to obstruct the navigation, it would have been 
 an indictable offence ; but that the verdict amounted to a finding of 
 not guilty. It was for the jury to say whether an erection of this 
 kind was a damage to the navigation or not, and the true question 
 for them was whether a damage accrued to the navigation in the 
 particular locality, (g) 
 
 By the 1 Eliz. c. 17, the taking of fish, except with the particular 
 trammels or nets therein specified, was prohibited, upon pain of the 
 forfeiture of a certain penalty, of the fish taken, and also of the 
 unlawful engines : and upon this Act it was contended, that a party 
 laying certain illegal engines called bucks in his own fishery was 
 guilty of a nuisance ; but the Court held that it could not be con- 
 sidered as a nuisance public or private, (h) 
 
 Where a vessel has been sunk in a navigable river by accident 
 and misfortune, no indictment can be maintained against the owner 
 for not removing it. Lord Kenyon, C. J., said that the grievance 
 had been occasioned, not by any default or wilful misconduct of the 
 defendant, but by accident and misfortune ; and that it would be 
 
 obstruction was so insignificant ; and that, such a case to justify a public nuisance ; 
 therefore, there was not a misdirection war- and I have not before heard it suggested 
 ranting a new trial. that, without the authority of Parliament, 
 (g) R. v. Betts, 16 Q. B. 1022. Lord the passage of ships up and down a navi- 
 C'ampbell asked, during the argument, ' May gable river could be obstructed for a given 
 not there be a common-law right to erect period by works which might afterwards 
 bridges not obstructing the navigation?' enable ships to navigate the river with in- 
 ' How have bridges ever been legally made creased facility. The consent of the Lords 
 over navigable rivers?' His Lordship also of the Admiralty, and of the riparian pro- 
 expressed his dissent from the opinions of prietors, could not supersede the necessity 
 the majority of the judges in R. v. Russell, for the authority of the Legislature.' See 
 6 B. & C. 566. And in The Mayor of Nor- Abraham v. G. N. R. Co., 16 < t >. 1'.. 586, as 
 wich v. Norfolk R. Co., 4 E. & B. 440, to the construction of the Railway Clauses 
 speaking of a nuisance to a navigable river, Consolidation Act, 8 & 9 Vict. c. 20, in cases 
 Lord Campbell said, ' The doctrine of com- of bridges built over rivers, 
 pensation has not hitherto been applied in (/i) Bullbrooke v. Goodere, 8 Burr. 1768.
 
 848 Obstruction of Public Rivers. [book ii. 
 
 adding to the calamity to subject the party to an indictment for 
 what had proceeded from causes against which he could not guard, 
 or which he could not prevent: and though it was urged that if 
 the defendant was not punishable for having caused the nuisance, 
 yet it was his duty to have removed it, and that lie was liable to 
 be indicted for not having done so, the learned judge said, that 
 perhaps the expense of removing the vessel might have amounted 
 to more than the whole value of the property; and that he was 
 therefore of opinion that the offence charged was not the subject 
 of indictment, (i) And this decision has been' fully confirmed in 
 two cases, in which it has been held that it is the duty of a person 
 using a navigable river with a vessel of which he is possessed and has 
 the control, to use reasonable skill and care to prevent mischief to 
 others, and his liability is the same whether his vessel be in motion 
 or stationary, floating or aground, under water or above it. For in 
 all these circumstances the vessel may continue to be in his posses- 
 sion and under his control. This duty arises out of the possession 
 and control of the vessel being in him : and this liability may be 
 transferred, with the transfer of the possession and control, to another 
 person. And on the abandonment of such possession and control 
 the liability ceases. And further, that from an unavoidable accident 
 producing the wreck of a vessel, no duty arises to the owner to take 
 any precautions or to remove the impediment to navigation which 
 it creates, (j/') 
 
 A Weir appurtenant to a fishery, obstructing the whole or a part 
 of a navigable river, is legal, if granted by the crown before the 
 commencement of the reign of Edward 1, and such a grant may 
 be inferred from evidence of its having existed before that time. 
 If the weir, when so first granted, obstruct the navigation of only 
 a part of the river, it does not become illegal by the stream changing 
 its bed, so that the weir obstructs the only navigable passage remain- 
 ing. Where the crown had no right to obstruct the whole passage 
 of a navigable river, it had no right to obstruct a part by erecting a 
 weir, except subject to the rights of the public ; and, therefore, in 
 such case, the weir would become illegal upon the rest of the river 
 being so choked that there could be no passage elsewhere. In an 
 action of trespass for throwing down a weir, the plaintiff established 
 the existence of the weir by a royal grant made at some time prior 
 to the time of Edward 1 ; but it stood across part of the Severn, a 
 public navigable river, — a part, indeed, not required for the purposes 
 of navigation at the date of the grant, hut, at the time of the com- 
 mission of the trespass, necessary for those purposes, by reason of 
 the residue of the channel having become choked up. The plaintiff 
 contended that, at the date of the grant, the crown had the power 
 of making it, even to the disturbance or total prevention of the 
 right of navigation by the subject ; or that, at all events, it had 
 
 (i) R. v. Watts, 2 Esp. R. 675. B. 348, to show that it is a nuisance to leave 
 
 (j) White v. Crisp, 10 Exch. R. 312 ; an anchor in a navigable river without a 
 
 Brown v. Mallett, 5 C. B. 599. See the re- buoy ; and where it was held that the owner 
 
 marks in this case on Harmond v. Pearson, of an anchor was not guilty of a nuisance 
 
 2 Esp. 675, which is cited in Hancock v. created by it in a place to w Inch it had been 
 
 York, Newcastle, & Berwick K. Co., 10 C. removed without his knowledge.
 
 chap, xxxn. § in.] Of Nuisances to Highways. 849 
 
 the power of making such a grant, if, in the then existing state of 
 circumstances, it did not interfere with the rights of the subject: 
 and that such a grant, valid in its inception, would not become invalid 
 by reason of any change of circumstances, which might afterwards 
 affect the residue of the channel. Lord Dennian, C. J., in delivering 
 the judgment of the Court, said, 'If the subject (which this view 
 of the case concedes) had by common law a right of passage in the 
 channel of the river, paramount to the power of the crown, we 
 cannot conceive such right to have been originally other than a right 
 locally unlimited to pass in all and every part of the channel. The 
 nature of the highway which a navigable river affords, liable to be 
 affected by natural and uncontrollable causes, presenting conveniences 
 in different parts and on different sides according to the changes of 
 wind or direction of the vessel, and attended by the important 
 circumstance that on no one is any duty imposed by the common 
 law to do that which would be analogous to the ordinary repair of 
 a common highway to remove obstructions, namely, clear away sand- 
 banks and preserve any accustomed channel, — all these considerations 
 make it an almost irresistible conclusion that the paramount right, 
 if it existed at all, must have been a right in every part of the space 
 between the banks. It cannot be disputed that the channel of a 
 public navigable river is a King's highway, and is properly so de- 
 scribed ; and, if the analogy between it and a highway by land were 
 complete, there could be no doubt that the right would be such as 
 we now lay down ; for the right of passage in a highway by land 
 extends over every part of it. Now, although it may be conceded 
 that the analogy is not complete, yet the very circumstances in 
 which it fails, are strong to show that in this respect at least it 
 holds. The absence of any right to go extra viam in case of the 
 channel being choked, and the want of a definite obligation on any- 
 one to repair, only render it more important, in order to make the 
 highway an effectual one, that the right of passage should extend 
 to all parts of the channel. If then, subject to this right, the crown 
 had at any period the prerogative of raising weirs in such parts as 
 were not at the time actually required by the subject for the pur- 
 poses of navigation, it follows, from the very nature of a paramount 
 right on the one hand and a subordinate right on the other, that 
 the latter must cease whensoever it cannot be exercised but to the 
 prejudice of the former. If, in the present case, the subject has 
 not at this moment the right to use that part of the channel on 
 which the weir stands, it is only because of the royal grant; and 
 that grant must then be alleged at its date to have done away for 
 ever, in so much of the channel, the right of the public : but that 
 is to suppose the subordinate right controlling that which is admitted 
 to be paramount, which is absurd. On the other hand, there is 
 nothing unreasonable or unjust in supposing the right to erect the 
 weir subject to the necessities of the public when they should 
 arise, for the right of the public, being supposed to be para- 
 mount by law, the grantee must be taken to be cognizant of such 
 right: and the same natural peculiarities, and the same absence 
 of any obligation by law on anyone to counteract those peculiarities 
 above-mentioned, would give him full notice of the probability that 
 vol. i. — 54
 
 850 Obstruction of Public Rivers. [book ii. 
 
 at some period his grant would be determined. We do not there- 
 fore think that the plaintiff can sustain his second point.' 
 
 With regard to the power of the crown at common law to interfere 
 with the channels of public rivers, Lord Denman, C. J., said, ' On the 
 one side the contention is, that prior to Magna Charta, the power of 
 the crown was absolute over them ; and that this weir, by the anti- 
 quity assigned to it by the finding of the jury, is saved from the oper- 
 ation of that or any succeeding statute ; while, on the other, it is 
 alleged that they are and were highways to all intents and purposes, 
 which the crown had no power to limit or interfere with, and that as 
 well the restraints enacted by, as the confirmations implied from, the 
 statutes alluded to have nothing to do with the present question. 
 
 ' After an attentive examination of the authorities and the statutes 
 referred to in the argument, we cannot see any satisfactory evidence 
 that the power of the crown in this respect was greater at the com- 
 mon law before the passing of Magna Charta than it has been since. 
 It is clear that the channels of public navigable rivers were always 
 highways: up to the point reached by the flow of the tide the soil 
 was presumably in the crown ; and above that point, whether the 
 soil at common law was in the crown or the owners of the adjacent 
 lands (a point perhaps not free from doubt), there was at least a 
 jurisdiction in the crown, according to Sir Matthew Hale, "to reform 
 and punish nuisances in all rivers, whether fresh or salt, that are a 
 common passage, not only for ships and greater vessels, but also for 
 smaller, as barges or boats;" De Jure Maris, Part I., c. 2, p. 8. In 
 either case the right of the subject to pass up and down was com- 
 plete. In the case of the Bann Fishery (k), where the reporter is 
 speaking of rivers within the flux and reflux of the tide, it is stated 
 that this right was by the King's i><r mission, for the ease and com- 
 modity of the people ; but if this be the true foundation, and if the 
 same may be also properly said of the same right in the higher parts 
 of rivers, still the permission supposed must be coeval with the mon- 
 archy, and anterior to any grant by any particular monarch of the 
 right to erect a weir in any particular river. It is difficult, therefore, 
 to see how any such grant made in derogation of the public right 
 previously existing, and in direct opposition to that duty, which the 
 law casts on the crown, of reforming and punishing all nuisances 
 which obstruct the navigation of public rivers, could have been in its 
 inception valid at common law. Nor can we find, in the language of 
 the statutes referred to, anything inconsistent with this conclusion. 
 They speak indeed of acts clone in violation of this public right ; but 
 they do not refer them to any power legally existing in the crown, 
 which for the future they propose to abridge. We are, therefore, of 
 opinion that the legality of this weir cannot be sustained on the sup- 
 position of any power existing by law in the crown in the time of 
 Edward 1, which is now taken away. But this does not exhaust the 
 question ; because that which was not legal at first may have been 
 subsequently legalized. 
 
 ' The learned counsel for the defendants is probably correct in say- 
 ing that the twenty-third chapter of Magna Charta may be laid out 
 of the case. The kidelli there spoken of appear, from the 2 Inst. 
 
 (k) Davies's R. 57 a.
 
 chap. xxxn. § in.] Of Nuisances to Highways. 851 
 
 p. 38, and the Chester Mill Case, (I) to have been open weirs erected for 
 the taking of fish; ami the evil intended to be remedied by the 
 statute was the unlawful destruction of that important article of con- 
 sumption. That statute, therefore, being pointed at another mischief, 
 might leave any question of nuisance by obstruction to the passage of 
 boats exactly as it stood at common law. But the same remark does 
 not apply to 4 stat. 25 Edw. 3, c. 4. That begins by reciting that the 
 common passage of boats and ships in the great rivers of England is 
 oftentimes annoyed by the inhansing [a mistranslation of the word 
 lever for levying or setting up {rn) ] of gorces, mills, weirs, stanks, 
 stakes, and kiddles, and then provides for the utter destruction of all 
 such as have been levied and set up in the time of Edward 1 and 
 after. It further directs that writs shall be sent to the sheriffs of the 
 places where need shall be, to survey and inquire, and to do thereof 
 execution ; and also the justices shall be thereupon assigned at all 
 times that shall be needful. It is clear, we think, that, in any crimi- 
 nal proceeding for the demolition of this weir which had been insti- 
 tuted immediately after the passing of this statute, it would have 
 been a sufficient defence to have shown its erection before the time 
 of Edward 1 ; and, considering the concise language of statutes of 
 that early period, we think the statute would equally have been an 
 answer in any civil proceeding at the suit of a party injured. Assum- 
 ing the weir to have been illegally erected before the date of Magna 
 Charta, it is not unreasonable to suppose that a sort of compromise 
 was come to : similar nuisances were probably very numerous ; but 
 they were probably, many of them, of long standing ; it may have 
 been impossible to procure, or it may well have been thought un- 
 reasonable to insist on, an Act which should direct those to be abated 
 which had acquired the sanction of time ; and a line was therefore 
 drawn, which, preventing an increase of the nuisance for the future, 
 and abating it in all the instances which commenced within a given 
 period, impliedly legalized those which could be traced to an earlier 
 period. This appears to us the proper effect to be attributed to the 
 statute ; and, if it be, it disposes of any difference between a criminal 
 and civil proceeding. The earlier weirs were not merely protected 
 against the specific measures mentioned in the Act, but rendered ab- 
 solutely legal. If this would have been a good answer immediately 
 after the Act passed, it is at least equally good now ; and therefore, 
 of stat. 45 Edw. 3, c. 2, and stat. 1 Hen. 4, c. 12, it is unnecessary to 
 say more than that they do not at all weaken the defence which the 
 defendants have under the former statute.' (n) 
 
 It is said to have been adjudged that if a river be stopped, to the 
 nuisance of the country, and none appear bound by prescription to 
 clear it, those who have the piscary, and the neighbouring towns, 
 who have a common passage and easement therein, may be compelled 
 to do it. (o) For nuisances in the nature of obstructions an indict- 
 ment will of course lie, if the river be such as may be considered a 
 public highway. (/;) 
 
 (l) 10 Rep. 137 b. (o) 1 Hawk. P. C. c. 75, s. 13. Bac. Abr. 
 
 (m) Corrected in the translation of the 45 tit. Nuisance (C). 37 Ass. 10. 2 Roll. Abr. 
 
 Edw. 3, c. 2 (recital). 137. 
 
 (») Williams v. Wilcox, 8 Ad. & E. 314. (p) See R. v. Dobson, 1 Cox, C. C. 251,
 
 852 Public Bridges. [book ii. 
 
 Sec. IV. 
 Of Nuisances to Public Bridges. 
 
 The more ancient cases do not supply any immediate definition 
 or description in terms of what shall be considered ' public bridges.' 
 But a distinction between a public and a private bridge is taken in 
 one of the books, (q) and made to consist principally in its being built 
 for the common good of all the subjects, as opposed to a bridge made 
 for private purposes ; and though the words, ' public bridges,' do not 
 occur in the 22 Hen. 8, c. 5 (called the Statute of Bridges), yet as the 
 statute empowers the justices of the peace to inquire of ' all manner 
 of annoyances of bridges broken in the highways] and applies to 
 bridges of that description, in all its subsequent provisions, it may be 
 inferred that a bridge in a highway is a public bridge for all purposes 
 of repair connected with that statute. And ' if the meaning of the 
 words public bridge could properly be derived from any other less 
 authentic source than this statutable one, they might safely be de- 
 fined to be such bridges as all his Majesty's subjects had used freely 
 and without interruption, as of right, for a period of time competent 
 to protect themselves and all who should thereafter use them, from 
 being considered as wrong-doers in respect of such use, in any mode 
 of proceeding, civil or criminal, in which the legality of such use 
 might be questioned.' (r) 
 
 But a bridge built for the mere purpose of connecting a private 
 mill with the public highway, or for any other such merely private 
 purpose, would not necessarily become a part of the highway, 
 although the public might occasionally participate with the private 
 proprietor in the use of it ; and it is not every sort of bridge, erected 
 possibly for a temporary purpose, during a time of flood, that may 
 have rendered the ordinary fords impassable, or the ordinary means 
 of passage impracticable, which can be considered as a bridge in 
 a highway, to be repaired, when broken down, according to the 
 provisions of the Statute of Bridges, (s) 
 
 It is a question of fact, whether a particular structure be a 
 bridge or not ; and, upon a question whether an arch be a bridge 
 or culvert, the fact that it is built over a stream of water flowing 
 between banks, is not decisive to show that it is a bridge, although 
 there must be such a stream for the structure to be a bridge. Neither 
 is it decisive that it is not a bridge, that there are no parapets to it. (t) 
 On an indictment for not repairing the highway next adjoining each 
 end of Warmley Bridge, it appeared that the bridge was built before 
 
 as to costs where an indictment for a nuisance & P. 208. The structure in question in this 
 
 to the Thames had been removed into the case was an arch of nine feet span, over a 
 
 Court of Queen's Bench by certiorari. stream which fed a mill, and which was 
 
 (q) 2 Inst. 701. See F.. v. Inhabitants usually about three feet deep, but occasion- 
 
 of Upper Half Hundred of Chart and Long- ally shallower, and in flood times much 
 
 bridge, 39 L. J. M. C. 107. deeper, and it had no battlements at either 
 
 (r) By Lord Ellenborough, C. J., in R. end ; the jury having found a verdict of 
 
 v. Bucks', 12 East, 204. guilty upon "an indictment treating this 
 
 (s) R. v. Bucks, 12 East, 203, 204. structure as part of the road, the Court re- 
 
 (t) R. v. Whitney, 3 A. & E. 69 ; 7 C. fused a rule for a new trial.
 
 chap, xxxii. § iv.] Of Nuisances to Public Bridges. 853 
 
 the 43 Geo. 3, c. 59, and conveyed a turnpike road between parapet 
 walls over a stream of water, which at that place was confined 
 between banks, which prevented its overflowing the adjacent land in 
 winter when the water averaged two feet and a half in depth ; but 
 the stream was never dry at any time of the year ; Cress well, J., told 
 the jury that if they were satisfied that this structure was a bridge 
 their verdict must be for the Crown. If it had been erected for the 
 convenience of the public in passing over the stream, it was a county 
 bridge, and rendered the county liable to repair it, though the bridge 
 might not have been necessary for the convenience of the public 
 when it was built, (u) Where an ancient foot bridge consisted of 
 three planks nine or ten feet long, and was over a stream about a foot 
 and a half deep in summer, but frequently deeper in winter, and had 
 originally been repaired by a parish, it was held that this was not a 
 county bridge, (v) 
 
 The inhabitants of a county are bound by common law to repair 
 bridges erected over such water as answers the description of Jlumen 
 vel cursus aqua;, that is, water flowing in a channel between banks 
 more or less defined, although such channel may be occasionally dry ; 
 they are, therefore, not bound to repair arches in a raised causeway, 
 more than three hundred feet from the end of a bridge, through 
 which the water passes in flood times only. Where a road, in con- 
 tinuation of a bridge over a river, ran through low meadow ground, 
 liable to be flooded by the river, for five hundred and seventy-six 
 feet from the foot of the bridge, and formed a causeway, in which 
 were placed, at different intervals, five arched openings, two of which 
 were within three hundred feet of the bridge, which the county had 
 always repaired, and the other three more than three hundred feet 
 from the foot of the bridge, and the arches were built not over the 
 ordinary stream or course of the river, but over solid meadow ground, 
 which was subject to be much flooded, and there was generally a 
 strong current in winter through the arches, which, by giving vent 
 to the flood water, helped to protect the bridge, which would be in 
 danger from the penning up of the water if the causeway had no 
 arches ; it was held that the county was not liable to repair the 
 arches which were more than three hundred feet from the foot of the 
 bridge. The ancient form of indictment, as mentioned in 2 Inst 
 701, is, quod puns publicus et communis situs in alta regia via super 
 Jlumen seu cursum aqua?, &c., and although in many indictments in 
 modern times the words, super Jlumen, &c, are omitted, yet in such 
 indictments they must be considered as virtually included in the true 
 import of the term bridge ; for, otherwise, all such indictments would be 
 bad, there being many structures, bearing the name of bridge, erected 
 across a steep ravine, and in modern times over an ancient road, 
 crossed in a traverse direction by a new road, having no reference to 
 water, and which, unquestionably the county is not bound to repair; 
 and no more certain rule can be laid down than that the words Jlumen 
 
 (u) R. v. Gloucestershire, C. & M. 506. not been repaired by the county, but by 
 
 (v) I!. v. Southampton, Tinker's Bridge commissioners who had the charge of the 
 
 case, IS Q. B. S41. The liability to repair repairs of the highways. See the case, post, 
 
 county bridges had been transferred from p. 857. 
 
 parishes to the county, and the bridge had
 
 854 Obstruction. [book ii. 
 
 vel cursus aquic are to be considered to denote water, flowing in a 
 channel between banks, more or less defined, although such channel 
 may be occasionally dry. (w) 
 
 But this case has since been reconsidered. Upon an indictment 
 against the county of Derby for the non-repair of Swarkestone Bridge, 
 it appeared that the bridge was a structure 1,275 yards in length, and 
 consisted of forty-two arches, divided, at some points, by a stone 
 causeway, at others by the piers only. The river Trent flowed con- 
 stantly under five of the arches at one end of the structure, and a 
 brook flowed constantly under an arch at the opposite end. The 
 other arches lay across meadow land, and in times of flood the 
 water flowed under all of them, and under most of them there was 
 stagnant water at all times. The county had immemorially repaired 
 the whole structure, and had rebuilt and widened twenty-two of the 
 arches under which there was no constant stream. Parts of the 
 whole structure, other than the five arches, had been presented at 
 different times under the name of Swarkestone Bridge, by the grand 
 jury, as out of repair and thereupon repaired by the county. The 
 Court of Queen's Bench held that the county were liable to repair 
 the whole structure ; as the whole must be deemed a bridge, and 
 there was no general rule of law that arches, under which there was 
 no constant stream, could not form part of a county bridge, and that, 
 where such arches are contiguous to and as it were in continuation of 
 an acknowledged county bridge, and have been immemorially treated by 
 the county as part of the bridge, there was no rule of law to prevent 
 their being part of the bridge, (x) 
 
 As there may be a dedication of a road to the public, (y) so in the 
 case of a bridge, though it be built by a private individual, in the 
 first instance, for his own convenience, yet it may be dedicated by 
 him to the public, by his suffering them to have the use of it, and by 
 their using it accordingly, (z) And though, where there is such a 
 dedication, it must be absolute, (a) yet it may be definite in point of 
 time ; so that a bridge may be a public bridge, if it be used by the 
 public at all such times only as are dangerous to pass through the 
 river, (b) A bar across a public bridge, kept locked, except in times 
 of flood, is conclusive evidence that the public have only a limited 
 right to use the bridge at such times : therefore an indictment for not 
 keeping it in repair should not state that it is used by the King's sub- 
 jects, 'at their free will and pleasure.' (c) 
 
 (w) R. v. Oxfordshire, 1 B. & Ad. 289. (y) Ante, p. 763, et seq. 
 
 The county had previously been indicted for (z) R. v. Glamorgan, 2 East, 356. Glus- 
 
 not repairing two of the same arches, which burne Bridge case, 5 Burr. 2594. 2 Blac. 
 
 were described in the indictment as bridges, R. 687. R. v. West Riding of Yorkshire, 2 
 
 and on a special case it was held that there East, 342. And see post, p. 863, et seq. 
 was not sufficient to show that they were (et) According to the doctrine in Roberts 
 
 bridges, which the county was liable to v. Karr, 1 Campb. 262, in the note. And 
 
 repair, as the jury had not found either that see ante, p. 769. 
 
 they were erected at the same time as the (5) R. V.Northampton, 2 M. & S. 262. 
 
 bridge over the river, or for the purpose of In R. v. Devonshire, R. & M. N. P. C. 144, 
 
 enabling the public to pass, and not for the Abbott, C. J., held that the county were 
 
 benefit of the owners of the adjoining lands. liable to repair a bridge by the side of a ford, 
 
 R. v. Oxfordshire, 1 B. & Ad. 297. The which was only used by the public in times 
 
 indictment in R. v. Oxfordshire, 1 B. & Ad. of floods, which made the ford impassable, 
 
 219, contained six counts, all of which as the bridge was at all times open to the 
 
 charged the non-repair of a bridge, varying public, 
 the description in each count. (c) R. v. The Marquis of Buckingham, 
 
 (./•) R. v. Derbyshire, 2 Q. B. 745. 4 Campb. 189.
 
 chap. xxxn. § iv.] Of Nuisances to Public Bridges. 855 
 
 But a bridge built in a public way, without public utility, is in- 
 dictable as a nuisance, (d) 
 
 Where a bridge is, in the sense which has been described, a bridge 
 in a highway, it will of course be as public as the highway itself in 
 which it is situate, and of which, for the purpose of passage, it must 
 be understood to form a part, (e) All actual obstructions, therefore, 
 to such bridges will come within the rules already stated with respect 
 to nuisances to highways by obstruction, (/) and do not require a 
 repetition in this place. There is, however, one case where the de- 
 fendant was indicted for not repairing a house adjoining to a public 
 bridge, which he was bound to repair ratione tenurce, but permitted 
 it to be so much out of repair that it was ready to fall upon people 
 passing over the bridge ; it was found by a special verdict that the 
 defendant was only tenant at will of the house ; but the Court ad- 
 judged that he ought to repair, so that the public should not be pre- 
 judiced ; and though not properly chargeable to repair the house 
 ratione tenurce, yet that the averment should be intended of the pos- 
 session, and not of the service, (g) 
 
 The nuisances which more frequently arise to the public in respect 
 of bridges are in the nature of nonfeasance, from the neglect to keep 
 them in a proper state of repair. 
 
 As parishes are bound to repair the public ways within their dis- 
 trict; so the inhabitants of the county at large are, prima facie and 
 of common right, liable to the repair of all public bridges within its 
 limits, unless they can show a legal obligation on some other persons 
 or public bodies to bear the burden : (h) and this without any distinc- 
 tion as to foot, horse, or carriage bridges, (i) The Statute of Bridges 
 shows that the burden is prima facie on the county ; and it is exactly 
 analogous to the liability of the parish to repair a road, (j) But a hun- 
 dred or parish, or other known portion of a county, may by usage and 
 custom be chargeable to the repair of a bridge erected within it. (£) 
 So where a county of a town has been created by charter and declared 
 to be a separate county, the county in which it was originally situ- 
 ated is not liable for the repair of bridges within its boundaries. (I) 
 And a corporation aggregate, either in respect of a special tenure of 
 certain lands, or in respect of a special prescription, and also any 
 other persons by reason of such special tenure, may be compelled 
 to repair them, (m) And if a part of a bridge lie within a franchise, 
 
 (d) R. v. West Riding of Yorkshire, 2 (j) By Bayley, J., in R. v. Oxfordshire, 
 East, R. 342. But see post, p. 865, 43 Geo. 4 B. & C. 196. 
 
 3, c. 59, s. 5, as to the liability of counties (1c) R. v. Hendon, 4 B. & Ad. 628. K. 
 
 to repair bridges thereafter to be erected. v. New Sarum, 7 Q. B. 941. R. v. Eccles- 
 
 (e) R. v. Bucks, 12 East, 202, 203. field, 1 B. & A. 359. Per cur., and this 
 (/) Ante, p. 785, et scq. without stating any other ground than im- 
 (g) R. v. Watson, 2 Lord Raym. 856. memorial usage. 
 
 (h) 2 Inst. 700, 701, in the comment (/) R. v. Inhabitants of Southampton, 
 
 upon the statute of bridges, 22 Hen. 8, c. 5. 17 Q. B. D. 424. See this case varied upon 
 
 The reparation of public bridges was part of another ground, 19 Q. B. D. 590. 
 
 the trinoda necessitas, to which, by the (m) 1 Hawk. P. C. c. 77, s. 2. Bac. Abr. 
 
 ancient law, every man's estate was liable, tit. Bridges. A body politic may be bound 
 
 namely, expeditio contra hostcm, arciicm con- either ratione tenurce sivc proscription is ; but 
 
 structio, et pontium reparatio. a private person is not liable upon a gen- 
 
 (i) By Lord Ellenborough, C. J., in R. eral prescription. 2 Inst. 700. 13 Co. 33. 
 
 v. Salop, 13 East, 97. 1 Salk. 358. 3 Salk. 77, 381, and see ante, 
 
 p. 799.
 
 856 Non-Repair. [book ii. 
 
 those of the franchise may be charged with the repairs for so 
 much: also by a special tenure a person may be charged with the 
 repairs of one part of a bridge, and the inhabitants of the county 
 be liable to repair the rest, in) A prescription, that the lords of the 
 manor ought to repair a bridge is good, being laid ratione tcmcrce, by 
 reason of the demesnes of the manor, (u) And, as the obligation is 
 by reason of the demesnes of the manor, if part of the demesnes be 
 granted to an individual, he will be obliged to contribute to the re- 
 pairs : but the indictment may be against any of the tenants of the 
 demesnes, and it will be no defence on an indictment against one of 
 them that another is also liable, (p) And where an individual is 
 liable to repair a bridge, his tenant for years, being in possession, will 
 be under the same obligation, and liable to an indictment for the 
 neglect. (</) We have seen that the inhabitants of a district cannot 
 be charged ratione tenures, because unincorporated inhabitants cannot 
 qua inhabitants hold lands : and that a district cannot be charged by 
 prescription alone, without a consideration, to repair what is not within 
 such district, (r) As the burden resting upon a county to repair the 
 public bridges is exactly analogous to the liability of a parish to re- 
 pair a road, it is not removed by an Act of Parliament directing trus- 
 tees to lay out the tolls thereby granted in repairing roads, and 
 empowering them to make and repair bridges. To an indictment 
 against a county for not repairing a bridge in a highway, there was 
 a plea that, by an Act of Parliament certain trustees were directed to 
 lay out the tolls thereby granted in repairing the roads, and were 
 empowered to make and repair bridges ; that the bridge in question 
 was erected by the trustees under that Act ; that the trustees had 
 been liable to repairs, and had repaired the bridge from the time 
 it was so erected ; and that they were still liable to keep it in repair : 
 the replication traversed that they were so liable ; and the Court held 
 that the bridge having been erected for public purposes, in a public 
 highway, the common-law liability to repair attached upon the inhabi- 
 tants of the county as soon as it was built ; and that the plea was 
 clearly insufficient to exonerate them, as it did not aver that the 
 trustees had funds adequate to the repair of the bridge, (s) 
 
 In 1842 the Isle of Wight was a division of the county of South- 
 ampton, but had no separate commission of the peace ; before 1842 
 all public bridges in it, not repairable by tenure, had been repaired 
 either by the tithings, parishes, or townships in which they were 
 situate, or by rates in the nature of county rates levied on all the 
 
 (n) Bac. Abr. tit. Bridges. 1 Hawk. P. Buccleuch, 1 Salk. 358. And see ante 
 
 C. c. 77, s. 1. p. 802. 
 
 (o) R. v. Bucknall, 2 Lord Raym. 804. [q) R. v. Bucknall, 2 Lord Raym. 804. 
 
 At nisiprius (2 Lord Raym. 792) Holt, C. J., And see R. v. Watson, 2 Lord Raym. 856, 
 
 ruled that the prescription was good without ante. 
 
 saying ratione tenurce, on the ground that (r) R. v. Machynlleth, ante, p. 486. 
 
 the manor might have been granted to be (s) R. v. Oxfordshire, 4 B. & C. 194. 
 
 held by the service of repairing the bridge And it seems that even if the fact of ade- 
 
 before the statute quia emptoresterrarum, or quate funds in the hand of the trustees had 
 
 that the king might make such a grant, he been averred and proved, the county would 
 
 not being bound by the statute: but he still have been primarily liable, and must 
 
 afterwards changed his opinion. have taken their remedy against the trus- 
 
 (;>) Ibid. 792. R. v. The Duchess of tees. And see R. v. Netherthong, and other 
 
 cases ante, p. 794.
 
 chap, xxxir. § iv.] Of Nuisances to Public Bridges. 857 
 
 parishes and places in the island, under the following arrangement. 
 In 1772 the island having been assessed to the general county rate 
 ■with the other parts of the county, appeals were entered against that 
 assessment, and in 1774 an arrangement was made, by consent, fixing 
 certain proportions to be paid by the parishes in the island towards 
 the general county rate, but leaving the expense of bridges and the 
 house of correction to be raised by a local rate; the order of sessions 
 being that 'the said island be thereby adjudged and declared not to 
 be liable or subject to pay the county bridge rate or to the house of 
 correction ; the Isle of Wight agreeing to erect and maintain, from 
 time to time, houses of correction and bridges within the said island.' 
 After this arrangement the practice was for the county quarter ses- 
 sions, on the application of the justices for the island division, to levy 
 a rate, in the nature of a county rate, on every parish in the island 
 for the repair of the island bridges and bridewell. There was no 
 instance before 1842 of the application of the general county rate to 
 the repair of an island bridge ; but the justices of the island used to 
 expend the island rate made in the manner above-mentioned on the 
 island bridges and bridewell. A local Act, 53 Geo. 3, c. 92, appointed 
 commissioners for the repair of the highways in the island, with the 
 power of making assessments, and enacted that all bridges previously 
 repaired by any parishes, &c, within the island should for ever be 
 repaired in the same manner and by the same means as other bridges 
 usually called county bridges, within the said island, had been accus- 
 tomed to be repaired, and that such particular parishes, &c, should be 
 discharged from the exclusive burden of maintaining such bridges, &c. 
 It was held that all bridges, which, when the Act passed, were re- 
 pairable by the parishes, &c, in which they were situate, were for 
 the future repairable by the county generally, and that the arrange- 
 ment of 1774 did not affect the legal liability of the county ; for the 
 sessions had no authority to make such a rate upon the parishes in 
 the island, nor could this conventional mode of dividing the perform- 
 ance of the legal obligation alter the right of the public, when the lia- 
 bility to the performance became a legal question. No indictment 
 could be maintained against the island, which was not a district 
 chargeable, as such, with any liability known to the law, and as the 
 statute had expressly removed the obligation from the parishes, &c, 
 the county was bound to repair the bridges, (t) 
 
 Where an Act recited that it was convenient that a bridge should 
 be built across the Thames, and empowered S. D. to build a bridge, 
 at his own expense, and in consideration of the great expense he 
 would be at not only in building the bridge, but in erecting, repairing, 
 and maintaining other matters necessary to be erected, if'should be 
 lawful for S. D., his heirs and assigns, at all times thereafter to take, 
 for pontage or toll for any passage over the bridge, certain sums ; 
 and a clause reciting that it might happen that the passage might 
 for some time become dangerous or impracticable, enabled S. D., his 
 heirs and assigns, to provide and maintain a ferry across the river, 
 and to take the same sums for passage over the river by it as were 
 granted for the toll or pontage; but such ferry was not to continue 
 
 (/) R. v. Southampton, 18 Q. B. 841.
 
 858 Non-Repair. [book ii. 
 
 longer than should be necessary for repairing or rebuilding the bridge ; 
 and the bridge was not to be a county bridge. A later Act recited that 
 it had been found that the pontage or toll was greatly inadequate to 
 the expense of building and keeping in repair the said bridge, and 
 enacted that S. D., his heirs and assigns, might take the tolls there- 
 in specified. In 1850 the principal arch of the bridge fell in, and 
 the defendant, who had become proprietor of the bridge in 1829, 
 thereupon provided and maintained a ferry across the river near to 
 the bridge, and for passage over the ferry took the tolls authorized 
 by the Acts ; and it was held that these Acts imposed upon the 
 defendant, as proprietor of the bridge, the duty to repair and main- 
 tain it as long as he received the tolls, (u) 
 
 In one case a question was made as to the evidence on which a 
 jury might find that the defendants were an immemorial corporation, 
 and liable, in their corporate character, to the repair of a bridge. 
 The evidence was of a charter of Edw. 6, granted upon the recited 
 prayer of the inhabitants of the borough of Stratford-upon-Avon, 
 ' that the King would esteem them, the inhabitants, worthy to be 
 made, reduced, and erected, into a body corporate and politic ; ' and 
 thereupon proceeding to 'grant (without any w T ord of confirmation) 
 unto the inhabitants of the borough, that the same borough shall be 
 a free borough for ever thereafter ; ' and then proceeding to incor- 
 porate them by the name of the bailiffs and burgesses, &c. : and this 
 it was considered, would, without more, imply a new corporation. 
 But the same charter recited that it was an ancient borough, in which 
 a guild was theretofore founded, and endowed with lands, out of the 
 rents, revenues, and profits of which a school and an almshouse were 
 maintained, and a bridge was from time to time kept up and repaired; 
 which guild was then dissolved, and its lands lately come into the 
 King's hands ; and further recited that the inhabitants of the borough, 
 from time immemorial, had enjoyed franchises, liberties, free customs, 
 jurisdictions, privileges, exemptions, and immunities, by reason and 
 pretence of the guild, and of charters, grants, and confirmations to 
 the guild, and otherwise, which the inhabitants could not then hold 
 and enjoy by the dissolution of the guild, and for other causes, by 
 means whereof it was likely that the borough and its government 
 would fall into a worse state without speedy remedy ; and that there- 
 upon the inhabitants of the borough had prayed the King's favour (for 
 bettering the borough and government thereof, and for supporting the 
 great charges which from time to time they were bound to sustain), 
 to be deemed worthy to be made, &c, a body corporate, &c. : and 
 thereupon the King, after granting to the inhabitants of the borough 
 to be a corporation (as before stated), granted them the same bounds 
 and limits as the borough and the jurisdiction thereof from time im- 
 memorial had extended to : and then ' willing that the almshouse 
 and school should be kept up and maintained as heretofore (without 
 naming the bridge) and that the great charges to the borough and its 
 inhabitants from time to time incident might be thereafter the better 
 sustained and supported,' granted to the corporation the lands of the 
 late guild. There was also parol evidence, as far back as living 
 memory went, that the corporation had always repaired the bridge. 
 
 («) Nichnll v. Allen, 1 V,. & S. 916.
 
 chap, xxxii. § iv.] Of Nuisances lo Public Bridges. 859 
 
 And the Court held that, taking the whole of the charter and the 
 parol testimony together, the preponderance of the evidence was, 
 first, that this was a corporation by prescription, though words of 
 creation only were used in the incorporating part of the charter of 
 Edw. 6 ; and, secondly, that the burthen of repairing the bridge was 
 upon such prescriptive corporation, during the existence of the guild, 
 before that charter; though the guild out of their revenues had, in 
 fact, repaired the bridge, but only in ease of the corporation, and not 
 ratione tenures ; and that the corporation were still bound by pre- 
 scription, and not merely by tenure. A verdict, therefore, against 
 them upon an indictment for the non-repair of the bridge, charging 
 them as immemorially bound to the repair of it, was held to be 
 sustainable, (v) 
 
 Upon an indictment for the non-repair of Kelham Bridge, char- 
 ging the defendants ratione tenures, they produced at the trial a record 
 from the treasury of the Court of the receipt of the Exchequer, set- 
 ting forth a presentment in the time of Edw. 3, against the Bishop 
 of Lincoln, who was thereby charged with the liability to repair the 
 same bridge. The record stated a trial of this presentment at the 
 spring assizes, 20 Edw. 3 ; and that the jury found that the bishop 
 was not liable to repair the bridge, and being asked who of right 
 was bound to repair it, said that they were entirely ignorant ; but, 
 that the bridge was built about sixty years before, and then of alms 
 of the men of the country passing that way ; and that a former Bishop 
 of Lincoln passing through the country, charitably bestowed 40s. on 
 the workmen of the said bridge, and not in any other manner. The 
 defendants also put in a writ of privy seal, dated 28th of June, 20 
 Edw. 3, granting to the men of Kelham for three years, customs for 
 things for sale passing the said bridge, in order to repair the said 
 bridge. It was held, that these documents were material to the 
 issue, and good evidence towards proving it. It was argued that 
 the ignorance of the jury of any other liability, and their statement 
 of the origin of the bridge, and the manner in which the bishop had 
 contributed, by way of charity and not upon compulsion, were beyond 
 their province ; but the Court thought it could not be assumed that 
 at the remote period of this inquiry, the functions of a jury were 
 bounded within the same limits as at present ; every lawyer, indeed, 
 knew that the contrary was the fact; with the reasonable presump- 
 tion therefore, which must always be made in favour of the regularity 
 of proceedings conducted by proper authority, it might not be too 
 much to hold that this inquest was a public proceeding, in which 
 the jury might properly inquire, not only whether the person charged, 
 but also in general who, and whether any one was liable to the 
 repairs. At the same time there was no necessity for going this 
 length ; because, even if there should be some irregularity in set- 
 ting forth some particulars not inquired of that could not vitiate 
 what was correctly done. The facts then, that the bishop was 
 presented as chargeable by the men of Kelham, acting for the 
 public, that such presentment ended with his acquittal on that 
 ground, and that it was shortly followed by the grant of pontage to 
 the men of Kelham for the same repairs, were strong to negative 
 
 (v) R. v. Stratford-upon-Avon, 14 East, 34S.
 
 860 Liability to Repair. [book ii. 
 
 any immemorial liability ratione tenurce, because the Court must 
 suppose that the presentment would rather have been made against 
 the person so liable than against the bishop ; and that the grant of 
 pontage would not have been made at all. (w) 
 
 The 22 Hen. 8, c. 5, s. 1, called the Statute of Bridges, and made in 
 affirmance of the common law, enacts that the justices of the peace 
 in every shire, franchise, city, or borough, or four of them, whereof 
 one to be of the quorum, may inquire and determine, in their general 
 sessions, of all manner of annoyances of bridges broken in the high- 
 ways : and make such process and pains on every presentment against 
 the persons as ought to be charged for the making or amending of 
 such bridges as the King's Bench is used to do, or as it shall seem by 
 their discretions to be necessary and convenient. Sees. 2, 3 enact, 
 that where it cannot be known what hundred, city, town, &c, ought 
 to make such bridges decayed, they shall, if without city, or town 
 corporate, be made by the inhabitants of the shire or riding ; and if 
 within any city or town corporate, then by the inhabitants of such 
 city or town corporate; and that if part shall be in one shire, &c, 
 and part in another, the inhabitants of each shall repair and make 
 such part as lies within their respective limits. Sec. 9 enacts, that 
 such parts of highways as lie next adjoining to the ends of bridges by 
 the space of three hundred feet, shall be amended as often as need 
 shall require ; and that the justices, or four of them, whereof one to 
 be of the quorum, within their several limits, may inquire and deter- 
 mine, in their general sessions, all annoyances therein, and do in 
 everything concerning the same in as ample a manner as they may 
 do for making and repairing bridges, by virtue of the Act. (a?) Xu 
 private bridges are within the purview of this statute, but only such 
 as are common in the highways where all the king's liege people have 
 or may have passage. ( y) Unless the justices of a town, &c, be four 
 in number, and one of the quorum, they have no jurisdiction under 
 this statute. But the justices of the county in which such town 
 (not being a county of itself, and not having the number of justices), 
 shall lie, may determine as to the annoyances of bridges within the 
 town, &c, if it be known for a certainty what persons are bound to 
 repair them : but if it be not known, it seems that such annoyances 
 are left to the remedy at common law. (2) 
 
 The term ' riding,' in the 22 Hen. 8, c. 5, is not to be restrained 
 to districts called by that name, but any division of a county, which 
 corresponds in its definition to that of a riding, is to be included 
 within it. The Isle of Ely, therefore, is included within that term ; 
 and it is sufficient in an indictment for the non-repair of a bridge 
 within the Isle of Ely to allege that the bridge is in the Isle of Ely, 
 out of repair, and that the inhabitants of the Isle of Ely ought to 
 repair it. (a) 
 
 (w) R. v. Sutton, 8 Ad. & E. 516 ; ?, X. (a) R. v. Isle of Ely, 15 Q. B. 827. The 
 
 & P. 569. Court held that the 6 & 7 Will. 4, c. 87, 7 
 
 (x) See the 5 & 6 Will. 4, c. 50, s. 21, Will. 4, & 1 Vict. c. 53, s. 7, and 1 Ann. st. 
 
 post, p. 870. 1, c. IS, s. 1, showed that the Isle of Ely 
 
 (y) 1 Hawk. P. C. c. 77, s. 19, and see was a division of a county corresponding to 
 
 ante, p. 852. a riding. 
 
 (z) 1 Hawk. P. C. c. 77, s. 20. 2 Inst. 
 702.
 
 chap. xxxu. § iv.] Of Nuisances to Public Bridges. 861 
 
 It appears also to have been holden, that where the King enlarges 
 the boundaries of a city, by annexing part of the county to the county 
 of the city, the enlarged part is to be considered as parcel of the old 
 county of the city, so as to charge its inhabitants with the repairs of 
 bridges which were situate, at the time when the 22 Hen. 8, c. 5, was 
 made, within the county at large. The point was put upon the 
 ground that the statute lays no absolute charge till a bridge is in 
 decay ; so that though, when the statute was made, the bridges in 
 question were within the county of Norfolk, yet, as they were not 
 then in decay, the statute had no operation upon them before they 
 were annexed to the city of Norwich, (b) But where a borough incor- 
 porated by charter with a non-intromittant clause, was enlarged 
 under the 2 & 3 Will. 4, c. 64, and 5 & 6 Will. 4, c. 76, s. 7, by the 
 addition of a parish in the same county containing a bridge, which 
 until that time the county had repaired, and there was no evidence 
 that the borough had ever been used to maintain any bridge, it was 
 held that the transfer of the new district did not render the borough 
 liable to repair the bridge, (c) 
 
 The 13 & 14 Vict. c. 64, s. 5, recites that by the 5 & 6 Will. 4, 
 c. 76, certain bridges and parts of bridges have been included within 
 cities and boroughs, which bridges before that Act were maintained 
 as to the whole or such parts thereof as were within such cities or 
 boroughs by the inhabitants thereof, and the remaining bridges and 
 parts of bridges which were not situate within such limits were main- 
 tained by the counties or ridings respectively adjoining thereto, and 
 enacts that ' every bridge which is wholly or in part included within 
 the boundary of any such city or borough, the inhabitants whereof, 
 before the passing of the said recited Act, were by prescription or 
 otherwise liable to and did maintain the bridges and parts of bridges 
 within their respective cities and boroughs, shall as to the whole of 
 such bridges, if the same is (sic) wholly within the limits of such city 
 or borough, or as to such part as is within the limits of such city or 
 borough, if part only is within such limits, be maintained, altered, 
 widened, and repaired, improved or rebuilt, under the sole manage- 
 ment and control of the council of such city or borough, (d) 
 
 But though the inhabitants of a county, by common right, and 
 other persons, by the obligations which have been mentioned, are 
 bound to repair existing bridges, no person can be compelled to build, 
 or contribute to the building of any new bridge, without an Act of 
 Parliament ; nor can the inhabitants of a county, by their own 
 authority, change a bridge or highway from one place to another, (e). 
 Before the 14 Geo. 2, c. 33, the justices at the sessions had no 
 authority to change the situation of bridges ; but by that statute 
 they were overpowered, at their quarter sessions, to purchase any 
 
 (b) R. v. Norwich, 1 Str. 177. And see (e) 2 Inst. 700, 701. By Magna Charta 
 also R. v. St. Peter in York, 2 Lord Raym. it is enacted that nulla villa nee liber homo 
 1249. R. v. Oswestry, 6 M. & S. 361, post, distringatur facere pontes, aut riparias, nisi 
 P- 873. qui ab antiquo et de jure facere consueverunt 
 
 (c) R. v. New Sarum, 5 Q. B. 941. tempore Hcnrici regis avi nostri. And see 2 
 
 (d) The previous sections provide for the Inst. 29. R. v. Devon, 4 B. & C. 670, post, 
 repair, &c. , of bridges within corporate cities p. 870. 
 
 and boroughs, and for the raising money for 
 those purposes.
 
 862 Liability to Repair. [book ii. 
 
 piece of land adjoining or near to any county bridge, within the 
 limits of their respective commissions, for the more commodious 
 enlarging or convenient rebuilding the same ; but the land was not 
 to exceed an acre for any such bridge. (/) It was considered by a 
 very learned judge, that this statute impliedly enabled the magis- 
 trates to alter the position of bridges to suit the convenience of the 
 public ; ((/) but a more recent statute expressly gives them that power 
 where bridges are so much in decay as to require to be taken down. 
 The 43 Geo. 3, c. 59, s. 2, enacts, 'that where any bridge or bridges, 
 or roads at the ends thereof, repaired at the expense of any county, 
 shall be narrow and incommodious, it shall and may (h) be lawful to 
 and for the justices at any of their general quarter sessions, to order 
 and direct such bridge or bridges and roads to be widened, improved, 
 and made commodious for the public ; and that where any bridge or 
 bridges, repaired at the expense of any county, shall be so much in 
 decay as to render the taking the same wholly down necessary or 
 expedient, it shall and may be lawful to and for the said justices, at 
 any of their said general quarter sessions, to order and direct the 
 same to be rebuilt, either on the old site or situation, or in any new 
 one more convenient to the public, contiguous to or within two hun- 
 dred yards of the former one, as to such justices shall seem meet.' 
 And the statute also provides for the purchasing of land necessary 
 for such purposes, not exceeding an acre at any one bridge ; and for 
 assessing a compensation for such land, by means of a jury, where 
 the surveyor cannot agree for the price with the owner, in the same 
 manner as was done by the 13 Geo. 3, c. 78, (i) in relation to high- 
 ways. By 54 Geo. 3, c. 90, s. 1, these provisions, relating to the 
 purchase of land, are extended to such buildings and other erections 
 as may be necessary to be purchased for the purposes of the 43 Geo. 
 3 ; and the provisions of the 43 Geo. 3 (except such as relate to 
 bridges thereafter to be re-erected), (/') are extended as well to 
 bridges, and the roads at the ends thereof, repaired by the inhabi- 
 tants of hundreds, and other general divisions in the nature of hun- 
 dreds, as to bridges and the roads at the ends thereof, repaired by the 
 inhabitants of counties. The 3 Geo. 4, c. 126, s. 107, reciting that 
 ' many bridges on turnpike roads are, by prescription, liable to be 
 repaired by certain parishes, and not by the county or counties in 
 which they are situated, and which bridges, from change of times and 
 circumstances, are become no longer sufficiently convenient for the 
 use of the public, without being enlarged or otherwise improved,' 
 enacts, that ' it shall be lawful for any such county or counties, parish 
 or parishes, respectively, to enter into a composition or agreement 
 with each other, and by the authority of those persons who shall be 
 legally competent to make rates for such county and parish respec- 
 tively, whereby the improvement and future repair of any such bridge 
 shall be undertaken, and lie upon the county or counties in which 
 
 (/) 14 Geo. 2, c. 33, s. 1. It also pro- (h) Re Newport Bridge, 2 E. & E. 377. 
 
 vides for the payment for the land out of (i) Repealed by the 5 & 6 Will. 4, c. 50. 
 
 the county rates ; and its conveyance to This Act of the 43 Geo. 3, is not to extend 
 
 such persons as the justices shall appoint, in to bridges repaired by reason of tenure, &c. 
 
 trust for the purposes of the bridge. Sec. 7. 
 
 (g) By Buller, J., in R. v. Glamorgan- (/) Post, p. 865. 
 
 shire, 5 T. R. 283.
 
 chap. xxxn. § iv.] Of Nuisances to Public Bridges. 863 
 
 such bridge is locally situated ; and that all rates made for carrying 
 into effect any such composition, agreement, repairs, or improvement, 
 shall be made and assessed in the same manner as other the rates of 
 such county or parish respectively, and shall be good and valid to all 
 intents and purposes in the law whatsoever.' 
 
 Where the justices of the county of Dorset had contracted for the 
 building of a new bridge in a different site, in lieu of the old one, 
 which was ruinous ; and had directed the old bridge to be taken 
 down before the new one was passable, for the benefit of the old 
 materials, which were to be used by the contractor in finishing the 
 new bridge ; the Court refused a writ of prohibition to them, to 
 restrain them from pulling down the old bridge before the new one 
 was passsble ; and this, though there were strong affidavits of the 
 inconvenience and loss which would be sustained by the people in 
 the neighbourhood, by being obliged to use a circuitous way in the 
 interval. And they referred the complainants to the ordinary remedy 
 by indictment, if the pulling down the old bridge, under these 
 circumstances, were a nuisance. (/>;) 
 
 The question, whether the inhabitants of a county, from their 
 common-law liability to the repair of public bridges, are liable to 
 repair a bridge not originally built by them, appears to have been 
 formerly a subject of much discussion. But, after able argument and 
 great consideration, the principle was established ' that if a man build 
 a bridge, and it become useful to the county in general, the county 
 shall repair it.' (/) Upon this principle, where the inhabitants of a 
 township took down an ancient foot-bridge, which they were bound 
 to repair, and built another, for horses and carriages, in a different and 
 more commodious part of the river, which became afterwards of gen- 
 eral public utility, it was held that this bridge should be repaired by 
 the county, and not by the township, (w) And the same principle of 
 the public being obliged to support a bridge of public utility has been 
 acted upon in many subsequent cases. Thus the county was held 
 liable to repair a bridge erected in the King's highway, which about 
 forty years before had been erected by an individual, for his private 
 benefit and utility, and for making a commodious way to his tin- 
 works, upon proof that the public had constantly used the bridge 
 from the time of its being built, (n) And where an old foot-bridge 
 had been enlarged, in the first instance to a horse -bridge, and after- 
 wards to a carriage-bridge, by a township, at their expense, it was 
 recognized as the general law that where a township, or any private 
 individuals, build a new bridge, and dedicate it to the public benefit, 
 and it is used by the public, the onus of repairing it falls upon the 
 county at large, (o) In a case also where the doctrine was fully 
 investigated and considered, it was held that the county or riding was 
 liable to the repair of a bridge built by trustees under a turnpike 
 Act, there being no special provision for exonerating them from the 
 common-law liability, or transferring it to others, (p) 
 
 (k) R. v. Dorset, 15 East, 594. (o) R. v. The West Riding of Yorkshire, 
 
 (I) Glusburne Bridge case, 5 Burr. 2594. 2 East, 353, note («). 
 
 2 Blac. R. 685. (p) Id. Ibid. 2 East, 342, and the cir- 
 
 (m) Id. ibid. cumstance of the trustees being enabled to 
 
 (n) R. v. Glamorgan, 2 East, 356, note (a), raise tolls for the support of the roads was 
 
 Bac. Abr. Bridge. not considered as taking the case out of the 
 
 general principle.
 
 864 Liability to Repair. [book ii. 
 
 Where it appeared that Queen Anne, in the year 1708, for her 
 greater convenience in passing to and from Windsor Castle, built a 
 bridge over the Thames, at Datchet, in the common highway leading 
 from London to Windsor, in lieu of an ancient ferry, with a toll, 
 which belonged to the crown; and she and her successors maintained 
 and repaired the bridge till 1796, when, being in part broken down, 
 the whole was removed, and the materials converted to the use of 
 the king, by whom the ferry was re-established as before ; it was 
 held that the bridge was a public one, repairable by the inhabitants 
 of the county, (q) And where the facts were, that a person about 
 forty-five years before had erected a mill, and dam thereto, for his 
 own profitj by which means he deepened the water of a ford through 
 which there was a public highway, but the passage through which 
 was, before the deepening, very inconvenient at times to the public, 
 and the miller had afterwards built a bridge over it, which the pub- 
 lic had ever since used ; it was decided that the county, and not the 
 miller, were chargeable with the reparation, (r) In this case the 
 Court was much pressed by an ancient authority to this effect: 'If a 
 man erect a mill for his own profit, and make a new cut for the 
 water to come to it, and make a new bridge over it, and the subjects 
 used to go over this as over a common bridge ; this bridge ought to 
 be repaired by him who has the mill, and not by the county, because 
 he erected it for his own benefit.' (s) And as that authority seemed 
 to constitute an anomaly in the law, and to be at variance with all 
 the cases, the record of the case was examined. From this it ap- 
 peared that the real question was on an obligation to repair by 
 reason of the tenure of certain lands ; and that no such question as 
 was supposed, namely, of a legal obligation resulting from the build- 
 ing of the bridge by the mill-owner for his benefit, was ever directly 
 or indirectly decided, or could properly have been argued, (t) Be- 
 lieved, therefore, from this case, the Court considered the authorities 
 from first to last as uniform ; and as establishing the doctrine that if 
 a private person build a private bridge, which afterwards becomes of 
 public convenience, the county is bound to repair it. (u) 
 
 In these cases there is always that which is to be considered as an 
 acquiescence by the county. The county is not liable, except for 
 bridges made in highways, (v) Upon the trial of an indictment 
 against the inhabitants of a county for the non-repair of a bridge 
 built by private owners, but not built in an existing highway, the 
 true effect of the evidence as to the dedication and the adoption of 
 
 (q) K.v. Bucks, ] 2 East, 192. ney-general, in E. v. Wilts, 1 Salk. 359. 
 
 \r) R. v. Kent, 2 M. & S. 513. With respect to the property in the materials 
 
 (s) 1 Roll. Abr. 368, citing the 8 Edw. of a bridge, when dedicated to the public, it 
 
 2, as adjudged in B. R. for Bow Bridge still continues in the individual, subject to 
 
 and Channel Bridge, against the Prior of the right of passage by the public, so that, 
 
 Stratford. when severed and taken away by a wrong- 
 
 (l) See a copy of the record, 2 M. & S. doer, he may maintain trespass for the as- 
 
 520, et seq. But see the observations on this portation. Harrison v. Parker, 6 East, 154. 
 
 record and case in R. v. Ely, 15 Q. B. 827, (v) By Bayley, J., in R. v. St. Benedict, 
 
 and semble, that the case may be rightly 4 B. & A. 450. Ante, p. 795. But there 
 
 stated by Rolle. seems no necessity for anything like an 
 
 (u) R. v. Kent, 2 M. & S. 520. The same adoption in this case any more than in the 
 
 doctrine appears to have been laid down case of a road. B. v. Leake, ante, p. 795. 
 long ago in a case cited by Northey, attor-
 
 chap. xxxn. § iv.] Of Nuisances to Public Bridges. 865 
 
 the bridge by the county is always a question for the jury. The fact 
 that such a bridge is of public utility and is used by the public is not 
 necessarily conclusive against the county on the question of liability, 
 uses and utility being only elements for consideration in determining 
 that question, but there need not, in addition to evidence of public 
 uses and public utility, be proof of an overt act amounting to a formal 
 adoption by a body capable of representing and binding the county, (w) 
 
 But though a bridge built by an individual may thus become pub- 
 lic, yet it will not become so from the mere circumstance of its being 
 built in a public way ; and it appears to have been considered that a 
 bridge built in a public way, without public utility, or built colour- 
 ably in an imperfect or inconvenient manner, with a view to throw 
 the burthen of rebuilding or repairing it immediately on the county, 
 may be indicted as a nuisance, (x) A protection is also given to 
 counties by the 43 Geo. 3, c. 59, from the burden of repairing certain 
 bridges, erected after the 24th June, 1803. For the more clearly 
 ascertaining the description of bridges, which inhabitants of counties 
 shall be liable to repair and maintain, sec. 5 enacts, ' that no bridge 
 hereafter to be erected or built in any county, by or at the expense of 
 any individual or private person or persons, body politic or corporate, 
 shall be deemed or taken to be a county bridge, or a bridge which the 
 inhabitants of any county shall be compellable or liable to maintain 
 or repair, unless such bridge shall be erected in a substantial and 
 commodious manner, under the direction or to the satisfaction of the 
 county surveyor, or person appointed by the justices of the peace at 
 their general quarter sessions assembled, or by the justices of the 
 peace of the county of Lancaster, at their annual general sessions ; 
 and which surveyor, or person so appointed, is hereby required to 
 superintend and inspect the erection of such bridge, when thereunto 
 requested by the party or parties desirous of erecting the same ; and 
 in case the said party or parties shall be dissatisfied, the matter shall 
 be determined by the said justices respectively at their next general 
 quarter sessions, or at their annual general sessions in the county of 
 Lancaster.' (y) 
 
 By 41 & 42 Vic. c. 77, sec. 21, 'Any bridge erected before the pass- 
 ing of this Act in any county without such superintendence as is pro- 
 vided in section five of the statute of the forty-third year of King 
 George the Third, chapter fifty-nine, and which is certified by the 
 county surveyor or other person appointed in that behalf by the 
 county authority to be in good repair and condition, shall, if the county 
 authority see fit so to order, become and be deemed to be a bridge 
 which the inhabitants of the county shall be liable to maintain and 
 repair.' 
 
 Sec. 22. ' The county authority may make such contribution as it sees 
 fit out of the county rates towards the cost of any bridge to be here- 
 after erected, after the same has been certified in accordance with the 
 
 (w) R. v. Southampton, 19 Q. B D. 590. or roads which any person or persons, bodies 
 
 (x) R. v. The West Riding of Yorkshire, politic or corporate, is, are, or shall be liable 
 
 2 East, 342. to maintain or repair by reason of tenure or 
 
 (y) See R. v. Netherthong, 2 B. & A. by prescription, or to alter or affect the right 
 
 183. Sec. 7 provides, that nothing in the to repair such bridges or roads. 
 
 Act contained shall extend to any bridges 
 
 vol. I. — 55
 
 866 Liability to Repair. [book ii. 
 
 provisions of section five of the statute of the forty-third year of King 
 George the Third, chapter fifty-nine, as a proper bridge to be main- 
 tained by the inhabitants of the county ; so always that such con- 
 tribution shall not exceed one half the cost of erecting such bridge.' 
 
 Where an ancient bridge in the Isle of Wight had always been re- 
 paired by the tithing, in which it was situate, down to the passing of 
 the 53 Geo. 3, c. 92, under the circumstances mentioned in a former 
 page, (z) and in 1814 after the passing of that Act, the bridge being 
 out of repair, the justices for the island caused a bridge of greater 
 width than the old one to be built in a different position, higher up 
 the river, and the expense was paid out of the local rate ordered by 
 the quarter sessions of the county in the manner mentioned at a 
 former page, (a) and levied on the inhabitants of the island, but the 
 directions of the 43 Geo, 3, c. 59, were not complied with ; it was held 
 that the county was liable to repair the new bridge, (b) 
 
 Upon an indictment for the non-repair of a bridge, it appeared that 
 the bridge had been widened subsequently to the 43 Geo. 3, c. 59, by 
 the trustees of a turnpike road ; the bridge had originally been built 
 by them, but had not before been chargeable to the county. The 
 statutes under which they had acted gave them a discretionary power 
 to erect bridges ; and the funds of the trusts were made applicable to 
 the repairs. The public had used the bridge in its present state for 
 a number of years ; the jury found that it was necessary to have a 
 bridge or culvert for the passage of a stream at the place in question ; 
 that a bridge was better for the public ; but that a culvert would suf- 
 fice, and would be beneficial. It was objected that this was substan- 
 tially a bridge erected since the 43 Geo. 3, and not having been built 
 under the direction of the county surveyor, the county was not liable 
 to repair it. But the Court held that the county were liable ; the 
 bridge existed and was used by the public before the Act, and the 
 county were bound to repair it ; the trustees widened it after the Act 
 came into force, but it continued the same bridge. The case of a 
 bridge widened, as in the present instance, appears not to have oc- 
 curred to the legislature ; at all events, it is not within the words of 
 the section. As to the finding of the jury, as they were of opinion 
 that a bridge was better than a culvert, the verdict of guilty was 
 right, (c) 
 
 Where before the 43 Geo. 3, c. 59, there had been a bridge used as 
 a carriage-bridge, and which the county repaired ; the abutments on 
 each side of the river were of stone, but all the rest of the bridge was 
 wood ; in 1807 the wooden part of the bridge was, during a flood, car- 
 ried some distance down the river, but the abutments remained, and 
 such part of the old wooden work as was fit for the purpose, together 
 with some new materials, were replaced on the abutments at the 
 expense of the parish, and the bridge was made about two feet wider 
 than it was before, and the bridge had ever since been used by the 
 public ; it was held that this was substantially the same bridge as 
 that which existed before 1807, and that the county were liable to 
 repair it. (d) 
 
 (z) J-iite, p. 857. was built by the justices of the county, and 
 
 (a) Ante, p. 857. not by 'any individual or private person.' 
 
 (b) R. v. Southampton, Sandown Bridge (c) R. v. Lancashire, 2 B. & Ad. 813. 
 case, 18 Q. B. 841. It rather seems that the (>/) R. v. Devonshire, 5 B. & Ad. 383 ; 2 
 ground of this decision was, that this bridge N- & M. 212.
 
 chap, xxxii. § iv.] Of Nuisances to Public Bridges. 867 
 
 The words of the 43 Geo. 3, c. 59. s. 5, comprehend every kind of 
 persons, by whom or at whose expense a bridge is built. Where, 
 therefore, a bridge was erected after the passing of the Act, by 
 trustees appointed by a local turnpike Act, but not under the direc- 
 tion or to the satisfaction of the county surveyor, &c, it was held 
 that it was not a bridge which the county was bound to repair, (e) 
 
 It may be useful shortly to notice a few cases in which counties 
 have been holden not to be liable to repair certain bridges built by 
 companies or trustees under particular Acts of Parliament. 
 
 Where the Medway Navigation Company, being empowered under 
 a local Act to make the river navigable, and to take tolls, and ' to 
 amend or alter such bridges or highways as might hinder the passage 
 or navigation, leaving them or others as convenient in their room,' had, 
 forty years before, destroyed a ford across the river in the common 
 highway, by deepening its bed, and built a bridge over the same 
 place ; it was held that they were bound to keep such bridge in re- 
 pair, as under a continuing condition to preserve the new passage in 
 lieu of the old one, which they destroyed for their own benefit. (/) 
 
 A canal company, authorized by an Act of Parliament to make the 
 river Bain navigable, and to make and enlarge certain navigable cuts, 
 and build bridges and other works connected with the navigation, 
 made a navigable cut, and deepened a ford which crossed the high- 
 way, for their own benefit, and thereby rendered a bridge necessary 
 for the passage of the public, which was accordingly built at the 
 expense of the company in the first instance : and it was held that 
 the company (who were found to have profitable funds for the pur- 
 pose) were bound to maintain it. (g) 
 
 The 49 Geo. 3, c. 84, appoints trustees for taking down the old and 
 building a new bridge over the river Tone, and empowers them to 
 take tolls ; and enacts that it shall be lawful for them, out of the 
 monies received, to build a new bridge, &c, and vests the property in 
 the old and new bridge, during the continuance of the Act, in the 
 trustees ; and further enacts, that as soon as the purposes of the Act 
 shall be executed, then and from henceforth the tolls shall cease, and 
 the bridge, &c, shall be repaired by such persons as are by law 
 liable to repair the old bridge. Upon this statute it was decided 
 that, during the time the trustees were engaged in executing the 
 powers of the Act, and before they had completed them, the county 
 was not liable to repair the bridge, (h) 
 
 The commissioners appointed by the 22 Car. 2, to make the river 
 Waveney navigable, were authorized to cut through any land they 
 thought fit, and make channels. They cut through a highway ; and 
 that cut made a bridge over it necessary for the public, though such 
 bridge was of no use to the navigation. A bridge was accordingly 
 made, but by whom did not appear ; and the bridge being out of repair, 
 an indictment was preferred against the proprietor of the navigation 
 (who received tolls upon the navigation) for not repairing it. Upon 
 
 (e) R. v. Derbyshire, 3 B. & Ad. 147. that if the trustees were dilatory in executing 
 
 (/) R. v. Kent, 13 East, 220. the powers of the Act, the Court of King's 
 
 (g) R. v. Lindsey, 14 East, 317. Bench, upon application, would lend its aid 
 
 (h) R. v. Somerset, 16 East, 305. Lord to expedite their functions. 
 Ellenhorough, C. J., intimated an opinion,
 
 868 WJw arc Liable to Repair. [book ii. 
 
 a case reserved, he contended, that he was not liable : but the Court 
 held clearly that he was ; for by the act of his predecessors the bridge 
 was made ; they cut, not for public purposes, but for private benefit ; 
 and the county could not be called upon, for it could be no advantage 
 to them to have a bridge in lieu of solid ground. {%) 
 
 To an indictment against the Isle of Ely, for not repairing a bridge 
 situated within it, the defendants pleaded that the river, over which 
 the bridge was erected, was an artificial cut made across an existing 
 highway by the Adventurers for the purpose of draining the Bed- 
 ford level, by virtue of certain powers under a commission of sewers ; 
 that the said river intersected and rendered wholly impassable the 
 said highway, and that the Adventurers, under the powers aforesaid, 
 erected the said bridge over the said river to enable the public to 
 pass as they otherwise would have done ; that the river was made 
 for the benefit of the Adventurers, and was maintained by them until 
 the 15 Car. 2, c. 17, when the property in the river and its banks, 
 and in the bridge, and in the lands benefited by the river, became 
 vested in the corporation of the Conservators of the Fens ; and 
 that the river was from that time maintained by the corporation 
 for their own benefit, and that they have continually repaired the 
 said bridge, and still are liable to repair the same : and upon demurrer 
 the Court of Queen's Bench held that this plea disclosed a valid 
 defence. And Patteson, J., in delivering the considered judgment 
 of the Court, said, ' The principle appears to be this, undoubtedly a 
 just one, that where the Act making the bridge necessary, though 
 authorized to be done, interferes with the public rights, and is done 
 primarily for private purposes, and the public use, from which the 
 public benefit is inferred, is to be referred only to the Act, because 
 made necessary by it, the public, indeed, remaining only with the 
 same convenience which it had before, the authority to do the act 
 is conditional only, equally whether the condition be expressed or 
 implied ; and the condition also is in both cases continuing so long 
 as the act continues whereby the public right is interfered with. 
 And as the obligation here insisted on, arises from the party's own 
 act, which would be unlawful unless such obligation could be com- 
 plied with, the case steers clear of any consideration as to the 
 existence of funds : for the party bringing the duty upon himself 
 for his own purpose cannot object the want of funds for the per- 
 formance of it. It appears to us, that when the Adventurers first 
 cut the drain, and interrupted the public highway, that act, however 
 authorized by commissioners of sewers or other power vested in 
 them, was done for their own use, benefit, and convenience, and 
 could be legal only on the condition of substituting another highway, 
 which could be only by a bridge as convenient for the public as the 
 old highway ; (j) that the public were in truth no gainers by the 
 change ; they were by this hypothesis merely placed in the same 
 situation as before ; and that the condition which was necessary 
 to legalize the first cutting of the drain was and is a continuing one; 
 the instant it is broken, the indefeasible rights of the public revive, 
 
 (i) R. i>. Kerrison, 3 M. & S. 526. (j) The words in the report are, ' as the 
 
 old one,' obviously an error.
 
 chap, xxxii. § iv.] Of Nuisances to Public Bridges. 869 
 
 and the cut becomes a nuisance. We think, therefore, that the plea 
 is in substance good.' (Jc) 
 
 It has been seen, (I) that by the 22 Hen. 8, c. 5, it is enacted, that 
 such parts of highways as lie next adjoining to the ends of bridges, 
 by the space of three hundred feet, shall be amended as often as need 
 shall require ; but it does nut say by whom they shall be amended. 
 It proceeds, however, to provide that the justices may inquire and 
 determine and do in everything concerning the same in as ample a 
 manner as they may do for making and repairing bridges by virtue of 
 that Act. (7) As early as the reign of Edw. 3, the judges under- 
 stood the approaches to a bridge to be, as it were, excrescences of 
 the bridge itself, and that the charge of repairing them was con- 
 sidered as belonging, prima facie, to the party charged with the 
 repair of the bridge itself. To an indictment against an abbot, for 
 the non-repair of a bridge, he pleaded that he was only bound to 
 repair two arches of it, and the jury found that he was bound only 
 to the repair of two arches, and the bridge over the stream of the 
 water, ct non fines ejusdem pontis. This was pleaded by him to a 
 second indictment, and the record read : yet Kuivet, J., said, ' We 
 intend that you are bound to repair the bridge, and the highway 
 applying to the one end and to the other; although the soil be in 
 another, because the easement shall be preserved for the people.' (m) 
 It has been decided, upon the authority of the preceding case, that 
 by the common law, declared and defined by this statute, and other 
 subsequent statutes, (/t) the inhabitants of a county liable to the 
 repair of a public bridge are liable also to repair to the extent of 
 three hundred feet of the highway at each end of it; and that, if 
 indicted for not repairing such highway, they can only exonerate 
 themselves by pleading specially that some other is bound to repair 
 it by prescription or tenure, (o) And it seems that private persons 
 are equally liable. (/>) 
 
 It may be considered settled that where the liability to repair 
 a bridge attaches by the general law, the liability to repair the 
 approaches to the bridge for the space of three hundred feet follows 
 the same rule. A corporation, therefore, liable by prescription, to 
 repair a bridge, is also, prima facie, liable to repair the highway to 
 the extent of three hundred feet at each end ; and such presump- 
 tion is not rebutted by proof that the corporation have been known 
 only to repair the bridge, and that the only repairs known to have 
 been done to the highway have been performed by commissioners 
 under a turnpike road Act. Qf) 
 
 But where a new and substantial bridge, of public utility, was 
 built within one county, and adopted by the public, it was held that 
 the inhabitants of that county were bound to repair it, although it 
 was built within three hundred feet of an old bridge, repairable by 
 the inhabitants of another county, who were bound as a matter of 
 
 (k) R. v. Ely, 15 Q. B. 827. (o) R. v. West Riding of Yorkshire, 7 
 
 (/) Ante, p. 860. East, 588, and the judgment was afterwards 
 
 (m) The Abbot of Combe's case, 43 Ass. affirmed in the House of Lords, 5 Taunt. 
 
 275, B. pi. 37, as stated in the judgment of 234. 
 
 the Court in E. v. Sutton, 8 A. & E. 71. (p) 3 Chit. C. L. 5S9. 
 
 O) 1 Anne, st. 1, c. 18, ss. 3, 5, 13, and (?) R. v. The Mayor of Lincoln, 8 Ad. & 
 
 12 Geo. 2, c. 29. Ell. 65, 3 X. & P. 273.
 
 870 Liability to Repair. [book ii. 
 
 course under the 22 Hen. 8, c, 5, to maintain three hundred feet of 
 road adjoining to their bridge, though it lay in the other county. 
 The Court said, that while the space where the bridge was built 
 continued a road, it was repairable as part of the old bridge ; but 
 that when there was a substantial bridge built upon it, such bridge 
 was repairable, as a bridge, by the inhabitants of the county in which 
 it was situated, according to the statute. (?•) 
 
 But now by the 5 & 6 Will. 4. c. 50, s. 21, ' If any bridge shall here- 
 after (s) be built, which bridge shall be liable by law to be repaired 
 by and at the expense of any county or part of any county, then and 
 in such case all highways leading to, passing over, and next adjoining 
 to such bridge shall be from time to time repaired by the parish, per- 
 son, or body politic or corporate, or trustees of a turnpike road, who 
 were by law before the erection of the said bridge bound to repair the 
 said highways : provided nevertheless, that nothing herein contained 
 shall extend or be construed to extend to exonerate or discharge any 
 county or any part of any county from repairing or keeping in repair 
 the walls, banks, or fences of the raised causeways and raised ap- 
 proaches to any such bridge, or the land arches thereof.' (t) 
 
 It seems clear that those who are bound to repair public bridges 
 must make them of such height and strength as shall be answerable 
 for the course of the water, whether it continues in the old channel, 
 or makes a new one ; and that they are not punishable as trespassers 
 for entering on any adjoining land for such purpose, or for laying on 
 the materials requisite for such repairs. («) The Court of King's 
 Bench once intimated, that if a bridge used for carriages, though 
 formerly adequate to the purpose intended, were not of a sufficient 
 width to meet the present public exigencies, owing to the increased 
 width of carriages, the burthen of widening it must be borne by those 
 who are bound to repair the bridge ; (v) but in the House of Lords, 
 on error, this point was considered as doubtful, (w) And, it has since 
 been held, that the obligation upon a county is only to repair a bridge 
 to the extent to which that bridge has been originally given to the 
 public, and that they are not bound to widen it. (a?) 
 
 The enactment in the 24 & 25 Vict. c. 70, s. 7, which provides that 
 if an owner of a locomotive engine, which, in being driven over a 
 bridge carrying a highway over a stream, damages the bridge so as 
 to render it unsafe for traffic, ' none of the proprietors, undertakers, 
 directors, conservators, trustees, commissioners, or other persons inter- 
 ested in or having the charge of such navigable river, canal, or rail- 
 way, or other the tolls thereof, or of such bridge or arch, shall be 
 
 (r) R. v. Devon, 14 East, 477. (v) R. v. Cumberland, 6 T. R. 194. 
 
 (s) The Act came into operation on the (?/•) Cumberland v. R., 3 B. & P. 354. 
 
 20th March, 1836. But the judgment was affirmed upon the 
 
 (t) The effect of this section is, in the case ground that, after verdict, it must be pre- 
 
 of county bridges built subsequently to the sumed that the over-narrowness of the bridge 
 
 Act, to throw the liability for surface repairs arose from its having been contracted from 
 
 to the roadway of the bridge and approaches its ancient width. 
 
 upon the highwav authority. R. v. South- (a;) R. v. Devon, 4 B. & C. 670 ; 7 D. & 
 
 ampton, 17 Q. B. D. 424, varied on another R. 147. R. v. Middlesex, 3 B. & Ad. 201 : 
 
 ground, 19 Q. B. D. 590. per Lord Tenterden, C. J. But though their 
 
 (u) 1 Hawk. P. C. c. 77, s. 1. Bac. Abr. obligation is only to this extent, see, as to the 
 
 Bridges. 43 Ass. pi. 37. Br. tit. Present- power to widen by an order at sessions, 43 
 
 ment in Courts, pi. 22, 29. Dalt. c. 14. Geo. 3, c. 59, s. 2, ante, p. 861.
 
 chap, xxxii. § iv.] Of Nuisances to Public Bridges. 871 
 
 liable to repair or make good any damage so occasioned, &c. ; but 
 every such damage shall be forthwith repaired to the satisfaction of 
 the proprietors, undertakers, directors, conservators, trustees, commis- 
 sioners, or other person, as aforesaid, respectively interested in or 
 having the charge of such river, &c, by and at the expense of the 
 owner, &c, of such locomotive at the time of the happening of such 
 damage,' does not apply to public bridges repairable by the inhabi- 
 tants of a county, so as to relieve them from their liability at common 
 law to repair, and render the owner of the locomotive liable to an 
 indictment for the non-repair of such a bridge so damaged by such 
 locomotive. And a conviction of the owner in such a case upon such 
 an indictment was quashed, (y) 
 
 The taxing and collecting monies for the repairing of bridges, and 
 the highways at the ends thereof, were first regulated by 22 Hen. 8, 
 c. 5, and afterwards by the 1 Anne, stat. 1, c. 13, by which the jus- 
 tices at their quarter sessions were empowered, upon presentment of 
 any bridge being out of repair, to make assessments upon every town 
 or place within their commissions for the charges of the repairs. The 
 12 Geo. 2, c. 29, s. 1, for the better collection of such monies, appointed 
 that they should be paid out of the general county rate; but sec. 13 
 enacted, that no money should be applied to the repair of any bridge, 
 until a presentment should be made by the grand jury of its want of 
 reparation. The 43 Geo. 3, c. 59, s. 2, also enacted, that no money 
 should be applied to such purposes until presentment made of the 
 insufficiency or want of reparation of such bridges. The 52 Geo. 3, 
 c. 110, and 55 Geo. 3, c. 143, make alterations in this respect, and 
 sec. 5 of the latter Act enacts, that ' it shall and may be lawful to 
 and for the justices of the peace of any county, city, riding, division, 
 town corporate, or liberty, at their general quarter sessions respec- 
 tively, to contract and agree, or to authorise any other person or 
 persons to contract and agree, with any person or persons, for the 
 maintaining and keeping in repair any county or hundred bridge, and 
 the road over such county or hundred bridge, and so much of the 
 roads at the ends thereof as are by law liable to be repaired at the 
 expense of any such county, hundred, city, riding, division, town cor- 
 porate, or liberty, or any part of the same ; and the said justices are 
 hereby empowered to order such sum or sums of money as may be 
 contracted for and agreed to be paid for the repairing, amending, and 
 supporting such bridges, and the roads over the same, or the ends 
 thereof, to be paid (in cases where the county is liable to the repair 
 thereof) by the treasurer of the county out of the county rate : or (in 
 cases where the hundred is liable to the repair of the same) by the 
 bridge-master (or other public officer charged with the repair of 
 bridges) of the hundred, by which such bridge is liable to be repaired, 
 for any term not exceeding seven years, nor less than one, although 
 no presentment of the insufficiency, decay, or want of repair of the 
 same shall have been made, and although no public notice shall have 
 been given by the said justices, at their respective general or quarter 
 sessions, of their intention to contract for the repair of such bridges, 
 or the roads at the ends thereof, as respectively directed by the said 
 
 (y) R. v. Kitchener, 43 L. J. M. C. 9, L. R. 2 C. C. R. 88.
 
 872 Liability to Repair. [book ii. 
 
 Act (12 Geo. 2, c. 29): provided nevertheless that, before any such 
 contract shall be made, the said justices shall cause notices to be 
 given in some public paper circulated in such county, city, riding, 
 hundred, division, town corporate, or liberty, of their intention to 
 contract.' By the 4 & 5 Vict. c. 49, the justices in sessions may 
 borrow money for repairing county bridges on the credit of the county 
 rate, and may charge the rate with interest on the money borrowed, 
 and with the payment of such further sum as shall secure the repay- 
 ment of the money borrowed in fourteen years. By the 13 & 14 Vict, 
 c. 64, provision is made for the repairs and rebuilding of bridges within 
 cities corporate and boroughs, under the control of the councils of such 
 cities and boroughs, and for the borrowing of money for such purposes. 
 By the 22 Hen. 8, c. 5, s. 3, it was provided that where part of a county 
 bridge shall be in one shire, &c, and part in another, the inhabitants 
 of each shire, &c, shall be contributory, (z) It has been questioned 
 whether a borough, which has no bridge within its own limits, be not 
 liable to contribute to the repairs of a county bridge, (a) Where 
 certain townships had enlarged a bridge to a carriage-bridge, which 
 they were before bound to repair as a footbridge, it was held that 
 they should still-be liable to repair pro rata, (b) So where a carriage- 
 bridge had been built before 1119, and certain abbey lands had been 
 ordained for its repair, and the proprietors of those lands had always 
 repaired the bridge so built ; and in 1736 the trustees of a turnpike 
 road, with the consent of a certain number of the proprietors of the 
 abbey lands, constructed a wooden bridge along the outside of the 
 parapet of the carriage-bridge, partly connected with it by brickwork 
 and iron pins, and partly resting on the stone work of the bridge ; it 
 was held that this foot-bridge was not parcel of the carriage-bridge, 
 which the proprietors of the abbey lands were bound to repair, but 
 that the county was liable to repair it. (c) 
 
 The methods of appointing surveyors, &c, for effecting the repairs 
 or rebuilding of bridges, and the powers given to such surveyors, and 
 persons employed under contracts, to procure materials for such pur- 
 poses, are contained in different Acts of Parliament, the provisions of 
 which do not fall within the object of this work, (d) 
 
 Where those upon whom the liability rests of repairing public 
 bridges, neglect their duty, such nonfeasance is a nuisance to the 
 public, punishable by information, presentment, or indictment. An 
 information was held to lie in the Court of King's Bench for the non- 
 repair of a bridge in a case wdiere it was considered that the 22 Hen. 
 8, c. 5, gave only a concurrent, but not an exclusive, jurisdiction to 
 the sessions; (e) but probably it would not be granted, except in 
 some cases of a peculiar nature, in which the Court might be 
 
 (z) This provision is alluded to by Lord 2 East, 353, note (a) ; and see E. v. Surrey, 
 
 Mansfield, C. J., in R. v. Weston, 4 Burr. 2 Campb. 455. 
 
 2511, and by counsel arguendo in R. v. Clif- (c) R. v. Middlesex, 3 B. & Ad. 201. 
 
 ton, 5 T. R. 501, 2. The usual proceeding (tl) See them collected in Burn's Just., 
 
 at this time appears to have been to indict tit. JJridgrs VI. ; and see also 55 Geo. 3, 
 
 each county separately, for neglecting to c. 143. By the 43 Geo. 3, c. 59, s. 4, in- 
 
 repair its own division. habitants of counties may sue for damnges 
 
 («) 1 Hawk. P. C. c. 77, s. 25. 1 Keb. done to bridges in the name of the surveyor. 
 68. (e) R- v. Norwich, 1 Str. 177. 
 
 (b) R. v. The West Riding of Yorkshire,
 
 chap. xxxn. § iv.] Of Nuisances to Public Bridges. 873 
 
 satisfied that the purposes of justice would not be effected by an 
 indictment. (/) The more usual course of proceeding is by indict- 
 ment or presentment, (g) 
 
 Although the 5 & 6 Will. 4, c. 50, repeals the 13 Geo. 3, c. 78, 
 which enabled a justice on his own view to present a highway which 
 was out of repair, that enactment is kept alive as to county bridges 
 by the 43 Geo. 3, c. 59, which extended the enactments of the 13 Geo. 
 3, c. 78, to county bridges so far as applicable thereto, and conse- 
 quently a single justice may still present a bridge out of repair on 
 his own view. (A) 
 
 The 22 Hen. 8, c. 5, s. 1, gave power to the justices of the peace 
 to hear and determine, in their general sessions, all annoyances of 
 bridges broken in the highways, and to make process, &c, as the 
 King's Bench used to do. By sec. 5, where any bridge is in one 
 shire, and the persons or lands which ought to be charged are in 
 another shire ; or where the bridge is within a city, or town corpo- 
 rate, and the persons or lands that ought to be charged are out of 
 the said city ; the justices of such shire, city, or town corporate, 
 shall have power to hear and determine such annoyances, being 
 within the limits of their commission ; and if the annoyance be 
 presented, then to make process into every shire of the realm against 
 such as ought to repair the same, and to do further in every behalf 
 as they might do if the persons or lands chargeable were in the same 
 shire, city, or town corporate where the annoyance is. 
 
 Any particular inhabitant or inhabitants of a county, or tenant or 
 tenants of land chargeable with the repairs of a public bridge, may 
 be indicted for not repairing it, and will be liable to pay the whole 
 fine assessed by the Court for the default of such repairs ; and will 
 be put to their remedy at law for a contribution from those who are 
 bound to bear a proportionable share in the charge, (i) It is suffi- 
 cient, in an indictment against a parish, to allege that the inhabitants 
 thereof have, from time whereof, &c, repaired and amended, and have 
 been used and accustomed, &c, without stating any other ground of 
 liability. (J) And so it is against a hundred, although it appears that 
 a township has been annexed to it by statute within time of legal 
 memory, such statute providing that the inhabitants of the township 
 should do everything the same as the inhabitants of the hundred did, 
 or were bound to do. (k) In the case of a corporation, if it were 
 alleged that the mayor, alderman, and burgesses had from time 
 immemorial repaired, and it appeared that there was a period when 
 the corporation was not so constituted, it would be bad. In such a 
 case, the proper way would be, to allege that the corporation had 
 immemorially repaired ; and then, however constituted the corporate 
 body might have been at different periods, the allegation would be 
 
 (/) See ante, p. 809. (h) R. v. Brecon, 15 Q. B. 813 ; 18 L. J. 
 
 (g) 2 Inst. 701. It has been held that M. C. 123. 
 
 an action will not lie by an individual (i) 1 Hawk. P. C. c. 77, s. 3. Bac. Abr. 
 
 against the inhabitants of a county for an t. Bridges. 
 
 injury sustained from a county bridge being (j) R. v. Hendon, 4 B. & Ad. 628. 
 
 out of repair. Russell v. The Men of Devon, (k) R. v. Oswestrv, 6 M. & S. 361. See 
 
 2 T. R. 667. Gibson v. Preston (Mayor of), R. v. Norwich, 1 Str. 177, ante, p. 361. 
 39 L. J. Q. B. 131.
 
 874 Indictment for Non-Repair. [book ii. 
 
 sustained. (Z) The indictment ought to show what sort of bridge it 
 is ; whether for carts and carriages, or for horses or foot-men only ; 
 and if the duty to repair arise by reason of the tenure of certain 
 lands, the indictment must show where those lands lie. (m) An in- 
 dictment charging an individual with the repair of a bridge, by 
 /■in son of his being owner and proprietor of a certain navigation, 
 is not equivalent to charging him ratione tenurm, but it is erron- 
 eous ; and it seems that a count, charging an individual by reason of 
 being owner of a navigation under a private Act of Parliament, must 
 set forth the Act ; and it is not sufficient to state that such party is 
 chargeable, by being owner and proprietor of the property subject to 
 the charge, (n) In presentments by the grand jury, it is said that 
 there is no occasion to show who ought to repair ; and that it is 
 sufficient if the defect be shown, and the bridge stated to be public, (o) 
 Where an indictment alleged that the defendant, and those whose 
 estate he had in a certain mill, from time whereof the memory of man 
 runneth not to the contrary, had repaired, and it appeared that the 
 mill did not exist before the time of Hen. 8, it was held that the 
 liability from time out of memory was disproved, (oo) 
 
 An indictment alleged that 'from time whereof,' &c, ' there hath 
 been and still is a certain common and public bridge over the river 
 Cherwell,' and that the inhabitants of the township of A. E. had 
 repaired and of right ought to repair the part of the said bridge 
 which lies in the said township. It appeared that the arch of the 
 bridge was down to 1806 only nine feet wide as to breadth of road, 
 but was widened in that year to the breadth of fifteen feet at the 
 expense of the township. The road over it was a carriage road both 
 before and after the widening. The defendants before the trial gave 
 a written admission that the bridge in question was such a bridge as 
 was described in the indictment. It was objected that the addition 
 of six feet in width, the repair of which must devolve on the county, 
 was such an alteration that the prescriptive liability to repair the 
 said part situate in the said township was negatived by the proof; 
 but the Court of Queen's Bench held that there was no misdescrip- 
 tion. Either the whole of the bridge, including the added part, was 
 still an ancient bridge, and the liability the same as before ; or the 
 new part was severable, so that there was an ancient bridge and 
 something else. And either state of things would support the 
 allegation, (p) 
 
 There is no doubt that an indictment will lie against a corporation 
 aggregate "for the non-repair or obstruction of a public bridge, (pp>) or 
 
 (1) Per Holroyd, J. R. v. Oswestry, 6 (/>) R. v. Adderbury East, 5 Q. B. 187. 
 
 M. & S. 361. See a form there, note («). Lord Denman, C. J., and Patteson, J., 
 
 (m) 1 Hawk. P. C. c. 77, s. 5. seemed to think the township liable to repair 
 
 (n) R. v. Kerrison, 1 M. & S. 435. the added part. 
 
 (o) 3 Chit. Crim. Law, 592, citing Andr. (pp) R. v. Birmingham and Gloucester R. 
 
 285. Co., 3 Q. B. 223. R. v. Great N. E. R. Co., 
 
 (oo) R. v. Hayman, Moo. & M. 401, 9 Q. B. 315. 1 
 Tindal, C. J. 
 
 American Note. 
 
 1 The contrary seems to have been held Swift Run Gap Turnpike, 2 Va. Cas. 362. 
 in Maine and Virginia. S. v. Great Works The English doctrine is followed in most of 
 Milling Co., 20 Me. 41, 37 Am. D. 38; C. v. the States, see Bishop i. s. 420.
 
 chap, xxxii. § iv.] Of Nuisances to Public Bridges. 875 
 
 against any members of such corporation who cause an obstruction to 
 a public bridge, (q) 
 
 As the occupier of land charged with the repair of a bridge, is un- 
 doubtedly liable to the performance of that duty, it is prudent to pre- 
 fer the indictment against such occupier, and not against the owner, 
 concerning whose liability doubts have risen, (r) In one case (s) the 
 Court of Queen's Bench said, ' With respect to the liability at common 
 law to the repair of bridges ratione tenurcc, the result of the author- 
 ities seems to be to throw the charge ultimately upon the owner, 
 though primarily, as far as the public are concerned, the occupier 
 may be the person chargeable by indictment in case of non-repair, (t) 
 and it would seem from those authorities that if the owner of land 
 charged with the repair of a bridge ratione tenurcc suffer it to be out 
 of repair, and the occupier of the land be indicted and fined, he would 
 be entitled to look for reimbursement to the owner, who ought to 
 have repaired, and who holds the land by the service of repairing the 
 bridge.' 
 
 Where an infant, eleven years old, inherited land charged with the 
 repair of a bridge, and his guardian in socage resided on the land, but 
 the infant did not, except occasionally; it was held, that although the 
 infant was actually seised, yet being so by the possession of his guar- 
 dian, he was not such an owner or occupier of the land, as to be 
 chargeable by indictment for the non-repair of the bridge, but that the 
 guardian was such an owner and occupier, (u) 
 
 It seems that, if there were no other person against whom per- 
 formance of the repairs of a bridge could be enforced, infancy would 
 not exempt a party, liable in other respects, from an indictment for 
 non-repair, (u) 
 
 It is laid down, that it is not sufficient for the defendants in an in- 
 dictment for not repairing a bridge to excuse themselves by showing 
 either that they are not bound to repair the whole or any part of the 
 bridge, without showing what other person is bound to repair it, and 
 that in such case the whole charge shall be laid upon the defendants 
 by reason of their ill plea, (v) But it is submitted that, from analogy 
 to the case of highways, this doctrine must be understood only "of 
 indictments against the county, and not of indictments against indi- 
 viduals, or bodies corporate, who are not of common right bound to 
 repair; because, as it lies on the prosecutor specially to state the 
 grounds on which such persons are liable, they may negative these 
 parts of the charge under the general issue, (w) And it has been 
 holden, upon an information for not repairing a bridge, that the de- 
 fendants, if not chargeable of common right, may discharge them- 
 selves upon the general issue, (x) But it is clear that the inhabitants 
 of a county, in order to exonerate themselves from the burden of re- 
 pairing a public bridge lying within it, must show by their plea that 
 
 (?) R. v. Betts, 16 Q. B. 1022. R. v. Hawk. P. C. c. 77, s. 3, and the cases there 
 
 Scott, 3 Q. B. 543. cited. 
 
 (r) See R. v. Sutton, 3 A. & E. 597. (u) R. v. Sutton, 3 A. & E. 597. 
 
 (s) Baker v. Greenhill, 3 Q. B. 148. (v) 1 Hawk. P. C. c. 77. s. 4. Bac. Abr. 
 
 See this case as to the construction of Acts tit. Bridges. Burn's Just. tit. Bridges, V. 
 dealing with certain liabilities to repair (w) 3 Chit. Crim. L. 592. 
 
 bridges ratione tcnurce. {x) R. v. Norwich, 1 Str. 177, and see 
 
 (t) R. v. Bucknell, 7 Mod. 55, 98. 1 ante, p. 814.
 
 876 Indictment for Non-Repair. [book ii. 
 
 some other person is liable to repair. (//) It has, however, been de- 
 cided, that it is competent to the inhabitants of a county, upon the 
 general issue, to give evidence of the bridge having been repaired by 
 private individuals. But this evidence appears to have been con- 
 sidered barely admissible as a medium of proof that the bridge was 
 not a public bridge, which undoubtedly the defendants had a right to 
 prove by every species of evidence; and the Court seemed to think 
 that it would have but little effect; though in order to ascertain 
 whether a bridge be public, the mode of its construction, and the 
 manner of its continuance, may be circumstances which, as they are 
 connected with others, may have much or little weight, (s) 
 
 To an indictment for not repairing a bridge described as lying in 
 two parishes, it is no plea that there has been a verdict and judgment 
 against J. S. finding him liable to repair it ratione tenurce, upon a pre- 
 sentment describing it as lying in one of the parishes ; for he may be 
 liable to repair only what is in one parish. The information was 
 against the county of Essex for not repairing Dagenham Bridge, in 
 the several parishes of Hornchurch and Dagenham ; and the plea was 
 that Knatchbull and Fanshaw had been presented for not repairing 
 it ratione tenurce of lands in Barking, and that a verdict and judg- 
 ment had passed against Fanshaw ; and to this there was a demurrer, 
 because the presentment stated in the plea described the bridge as 
 in Dagenham parish. And the Court said that Fanshaw might be 
 bound to repair what was in Dagenham parish, and the county might 
 be bound to repair the rest ; and gave judgment for the King, (a) 
 
 It is said that where the defendants plead that an individual ought 
 to repair the bridge mentioned in the indictment, and take a traverse 
 to the charge against themselves, the attorney-general, in this special 
 case, may take a traverse upon a traverse, and insist that the de- 
 fendants are bound to the repairs, and traverse the charge alleged 
 against the individual ; and that an issue ought to be taken of such 
 second traverse ; and that the attorney-general may afterwards sur- 
 mise that the defendants are bound to repair it, and that the whole 
 matter shall be tried by an indifferent jury, (b) 
 
 Where to an indictment against a riding for not repairing a public 
 carriage-bridge, the plea alleged that certain townships had immemo- 
 rially used to repair the said bridge, it was held that evidence that 
 the townships had enlarged the bridge to a carriage-bridge, which 
 they had before been bound to repair as a foot-bridge, would not 
 support the plea, (c) And, upon the same principle, where it was 
 proved that a particular parish was bound by prescription to repair 
 an old wooden foot-bridge, used by carriages only in times of flood, 
 and that about forty years ago the trustees of a turnpike road built 
 on the same site a much wider bridge of brick, which had been con- 
 stantly used ever since by all carriages passing that way ; it was 
 
 0/) R. v. Wilts, 1 Salk. 359. 2 Lord (a) R. v. Essex, T. Raym. 384. 
 
 Raym. 1174. {!>) 1 Hawk. P. C. c. 77, s. 5. Bac Abr. 
 
 (z) R. v. Northampton, 2 M. & S. 262. tit. Bridges. See ante, p. 816. 
 If a bishop, &c, hath once or twice of alms (c) R. v. The West Riding of Yorkshire, 
 
 repaired a bridge, this hinds not ; but yet it 2 East, 533, note (a). R. v. Middlesex, S 
 
 is evidence against him, that he ought to B. & Ad. 201. 
 repair, unless he proves tin- contrary, 2 Inst. 
 700. See R. v. Sutton, ante, p. 860.
 
 chap, xxxii. § iv.] Of Nuisances to Public Bridges. 877 
 
 held that these facts did not support a plea pleaded by the county 
 that the parish had immemorially repaired, and still ought to repair, 
 the said bridge, (d) Where the county was indicted for not repair- 
 ing a bridge, and pleaded that one Marsack was liable to repair 
 ratione tenurce, it was held that this plea was not sustained by evi- 
 dence that the estate of Marsack was part of a larger estate, which 
 part Marsack purchased of the Lord Cadogan, who had retained the 
 rest in his own hands, and had repaired the bridge as well before as 
 after the purchase, (e) 
 
 The 1 Anne, st. 1, c. 18, s. 5, enacts, that all matters concerning the 
 repairing and amending of bridges and the highways thereunto 
 adjoining shall be determined in the county where they lie, and not 
 elsewhere : but it seems that objection may be made to the justices 
 where they are all interested, and that in such case the trial shall 
 be had in the next county. (/) So where the matter concerns the 
 whole county, a suggestion may be made of any other county's 
 being next adjacent, and the venire shall come from thence so that 
 there may be an indifferent trial : (g) and if the bridge lies within 
 the county of a city, and the question is, whether the county of the 
 city, or the county at large, ought to repair, on a suggestion of these 
 facts on the record, the venire will be awarded into the county 
 adjacent to the larger district, (h) 
 
 Even before the recent Acts making persons interested competent 
 witnesses, inhabitants of counties might be witnesses in prosecutions 
 against private persons or corporate bodies for not repairing bridges. 
 (1 Anne, stat. 1, c. 18, s. 13.) (i) As to persons not now being 
 incompetent as witnesses on the ground of interest, see vol. 3, 
 Evidence. 
 
 It was said in one case, (J) and decided in another, (&) that evi- 
 dence of reputation could not be admitted to establish a liability to 
 repair a bridge ratione tenurce. But it has since been expressly held 
 that such evidence is admissible to prove such a liability ; for al- 
 though the question may involve matter of private right, yet matters 
 of public interest also depend upon it. Where, therefore, to a pre- 
 sentment that a bridge was out of repair the parish pleaded that A. 
 was liable to repair it ratione tenurce, and issue was joined on A.'s 
 liability, it was held that evidence of reputation that A. ought to 
 repair the bridge as alleged in the plea was admissible. (I) 
 
 On an indictment against a township for non-repair of a bridge, 
 declarations of rateable inhabitants, whether actually rated or not, 
 
 (d) R. v. Surrey, 2 Campb. 455. The (i) See R. v. Carpenter, 2 Show. 47. R. 
 facts would not have availed the county if v. Haynian, Moo. & M. 401, Tindal, C. J. 
 the plea had been framed differently, as the (/) R. v. Antrobus, 2 A. & E. 794, per 
 county was clearly liable to the repair of Patteson, J. 
 
 the new bridge. See ante, p. 863. (k) R. v. Wavertree, 2 M. & Rob. 353. 
 
 (e) R. v. Oxfordshire, 16 East, 223. Maule, J. 
 
 (/) R. v. Norwich, 5 Geo. 1, cited in 2 (T) R. v. Bedfordshire, 4 E. & B. 535. 
 
 Burr. 859. Burn's Just. tit. Bridges, V. The plea alleged that three arches ought to 
 
 (g) R. v. Wilts, 6 Mod. 307, and see 1 be repaired by different persons, by reason of 
 
 Salk. 380. 2 Lord Raym. 1174 ; 1 Hawk, their tenure of three different manors, and 
 
 P. C. c. 77, s. 6. the question rejected at the trial was whether 
 
 (h) R. v. Norwich, 1 Str. 177. 3 Chit. a witness had heard from his deceased father 
 
 Crim. L. 593. who ought to repair the second arch.
 
 878 Indictment for Non-Repair. [book ii. 
 
 may be given in evidence for the Crown, such inhabitants being 
 defendants on the record. (?») 
 
 As a prosecution for a nuisance to a public bridge has for its 
 object the removal of the obstruction, or the effecting of the necessary 
 reparations, the judgment of the Court upon a conviction will gener- 
 ally be regulated by the same principles as those which have been 
 mentioned in relation to the judgment for a nuisance to a high- 
 way. {%) The 1 Anne, stat. 1, c. 18, s. 4, enacts that no fine, issue, 
 penalty, or forfeiture, upon presentments or indictments for not re- 
 pairing bridges, or the highways at the ends of bridges, shall be 
 returned into the Exchequer, but shall be paid to the treasurer, to 
 be applied towards the repairs. But this seems only to relate to 
 county bridges. 
 
 Where upon an indictment for not repairing a bridge the verdict 
 was unsatisfactory, the practice formerly was to grant a rule for 
 staying the judgment upon payment of the costs of the prosecution, 
 in order that another indictment might be tried, (o) But it would 
 seem that the Court would now grant a new trial in such a 
 case, (p) 
 
 The 1 Anne, stat. 1, c. 18, s. 5, enacts, that no presentment or 
 indictment for not repairing bridges, or the highways at the ends 
 of bridges, shall be removed by certiorari out of the county into any 
 other Court. But it has been decided that, notwithstanding these 
 general words of the statute, an indictment for not repairing a bridge 
 may be removed by certiorari at the instance of the prosecutor, (q) 
 And it has been resolved that this clause of the Act extends only 
 to bridges where the county is charged to repair ; and that where a 
 private person or parish is charged, and the right will come in ques- 
 tion, the 5 Will. & M. c. 11, allowed the granting a certiorari, (r) 
 
 The 13 Geo. 3, c. 78, s. 64, empowered the Court trying an indict- 
 ment for non-repair of a highway to award costs to the prosecutor 
 if the defence was frivolous; and the 43 Geo. 3, c. 59, s. 1, enacted 
 that all ' matters and things in the said Act contained relating to 
 highways,' shall, so far as applicable, be extended and applied to 
 county bridges 'as fully and effectually as if the same and every 
 part thereof were herein repeated and re-enacted.' And the Court 
 of Queen's Bench held that the clause as to costs in the 13 Geo. 3, 
 c. 78, was substantively re-enacted in the 43 Geo. 3, c. 59, with 
 reference to county bridges, and therefore was not repealed by the 
 5 & 6 Will. 4, c. 50, which repeals in general terms the 13 Geo. 3, 
 c. 78, and consequently that the costs of an indictment for the 
 non-repair of a bridge may still be ordered where the defence is 
 frivolous, (s) 
 
 The judge, who tries an indictment for the non-repair of a bridge, 
 removed by certiorari, may certify after the assizes that the defence 
 
 (m) Ante, p. 818. (q) R- v. Cumberland, 6 T. R. 194. 
 
 (n) R. v. Alderbury East (Inhabitants Affirmed in Dom. Proc., 3 Bos. and Pull, 
 
 of), 5 Q. B. 187. 354. And see ante, note (e), p. 819. 
 
 (o) R. v. Oxfordshire, 16 East, 223. R. (r) R. v. Hamworth, 2 Str. 900. 1 Bar- 
 
 v. Sutton, 5 B. & Ad. 52. 2 Nev. & M. 57. nard, 445. See as to the 5 W. & M., ante, 
 
 (p) See R. v. Russell, 3 E. & B. 942, p. 819. 
 ante, p. 819. (s) R. «• Merionethshire, 6 Q. B. 343.
 
 chap. xxxn. § iv.] Of Nuisances to Public Bridges. 879 
 
 was frivolous, and by such certificate award payment of costs to the 
 prosecutor, which will be enforced by the Court of Queen's Bench, (t) 
 
 In highway and bridge indictments and other indictments insti- 
 tuted for the purpose of trying or enforcing a civil right, only the 
 defendant and his or her husband or wife are admissible witnesses 
 and compellable to give evidence. See Vol. III., Evidence. 
 
 By 51 and 52 Vic. c. 41, which transfers to the County Council all 
 county bridges and roads repairable therewith, a county council has 
 power to purchase or take over on terms to be agreed upon existing 
 bridges not being at present county bridges, and to erect new bridges, 
 and to maintain, repair, and improve any bridges so purchased, taken 
 over, or erected, (tt) 
 
 (t) R. v. Merionethshire, supra ; and see {tt) 51 & 52 Vic. c. 41, § 6. 
 
 R. v. Pembridge, 3 Q. B. 901, ante, p. 824.
 
 CHAPTER THE THIRTY-THIRD. 
 
 OF OBSTRUCTING PROCESS, AND OF DISOBEDIENCE TO ORDERS 
 
 OF MAGISTRATES. 1 
 
 Sec. I. 
 Of Obstructing Process. 
 
 The obstructing the execution of lawful process is an offence 
 against public justice of a very high and presumptuous nature ; and 
 more particularly so when the obstruction is of an arrest upon crimi- 
 nal process. So that it has been holden that the party opposing an 
 arrest upon criminal process becomes thereby particeps criminis : 
 that is, an accessory in felony, and a principal in high treason, (a) 
 
 And it should seem that the giving assistance to a person sus- 
 pected of felony and pursued by the officers of justice, in order to 
 enable such person to avoid being arrested, is an offence of the degree 
 of misdemeanor, as being an obstruction to the course of public 
 justice, (b) Thus, an indictment was preferred against the defendant 
 for a misdemeanor in the obstruction of public justice by rendering 
 assistance to one Olive, who was suspected of forgery and pursued 
 by the officers of justice, in order to enable Olive to avoid being 
 arrested. It appeared in evidence that Olive had committed a 
 forgery, as stated in the indictment ; and had afterwards, in a state 
 of desperation, thrown himself from the top of a house, by which he 
 was greatly hurt ; and that the defendant, who was a relation and 
 commiserated his wretched condition, conveyed him secretly on 
 board a barge from Gloucester to Bristol, and was actively employed 
 at the latter place in endeavouring to enable him to escape from this 
 country in a West India vessel. Advertisements had been printed 
 and circulated, stating the charge against Olive, and offering a large 
 reward for his apprehension : but it was not proved that any one of 
 these advertisements had come to the knowledge of the defendant, 
 or that the defendant was acquainted with the particular charge 
 against Olive, or knew that he had been guilty of forgery, as alleged 
 
 (a) 4 Black. Com. 128. 2 Hawk. P. C. arrested, to save himself from the arrest by 
 
 c. 17, s. 1, where Hawkins submits that it such resistance. 
 
 is reasonable to understand the books which (b) This position is not warranted by the 
 seem to contradict this opinion to intend case ; for it states that ' Olive had corn- 
 no more than that it is not felony in the mitted forgery,' and the position ought to 
 party himself, who is attacked in order to be be 'a person guilty > of felony,' instead ol 
 
 'suspected of felony.' C. S. G. 
 
 American Note. 
 
 1 See S. v. Hailey, 2 Strob. 73. There process in order to constitute the offencfr 
 must, however, be some active opposition to Crumpton v. Newman, 12 Ala. 199.
 
 chap, xxxiii.] Obstructing Process. 881 
 
 in the indictment. Upon this ground the defendant was acquitted : 
 but no other objection was taken to the indictment, (c) 
 
 Formerly, one of the greatest obstructions to public justice, both of 
 the civil and criminal kind, was the multitude of pretended privileged 
 places where indigent persons assembled together to shelter them- 
 selves from justice (especially in London and Southwark) under the 
 pretence of their having been ancient palaces of the Crown, or the 
 like ; (d) and it was found necessary to abolish the supposed privi- 
 leges and protection of these places by several legislative enactments. 
 See the 8 & 9 Will. 3, c. 27, 9 Geo. 1, c. 28, and 11 Geo. 1, c. 22, now 
 in part repealed by the 30 & 31 Vict. c. 59. 
 
 In some proceedings, particularly in those relating to the execution 
 of the revenue laws, (e) the Legislature has made especial provision 
 for the punishment of those who obstruct officers and persons acting 
 under proper authority. But in ordinary cases, where the offence 
 committed is less than felony, the 'obstruction of officers in the appre- 
 hension of the party will be only a misdemeanor, punishable by fine 
 and imprisonment. (/) 
 
 A party will not be guilty of the offence of obstructing an officer, 
 or the process which such officer may be about to execute, unless the 
 arrest is lawful. And in an indictment for this offence it must appear 
 that the arrest was made by proper authority, (g) 
 
 But where the process is regular, and executed by the proper 
 officer, it will not be competent even for a peace officer to obstruct 
 him, on the ground that the execution of it is attended with an affray 
 and disturbance of the peace ; for it is an established principle that if 
 one, having sufficient authority, issue a lawful command, it is not in 
 the power of any other, having an equal authority in the same respect, 
 to issue a contrary command ; as that would be to legalize confusion 
 and disorder. (A) The following case upon an indictment for an 
 assault and rescue proceeded upon this principle. Some sheriff's 
 officers having apprehended a man by virtue of a writ against him, 
 a mob collected, and endeavoured by violence to rescue the prisoner. 
 In the course of the scuffle, which was at ten o'clock at night, one 
 of the bailiffs, having been violently assaulted, struck one of the 
 assailants, a woman, and it was thought for some time that he had 
 killed her ; whereupon, and before her recovery was ascertained, 
 the constable was sent for, and charged with the custody of the 
 bailiff who had struck the woman. The bailiffs, on the other hand, 
 gave the constable notice of their authority, and represented the 
 violence which had been previously offered to them ; notwithstand- 
 ing which the constable proceeded to take them into custody upon 
 the charge of murder, and at first offered to take care also of their 
 prisoner; but their prisoner was soon rescued from them by the 
 surrounding mob. The next morning, the woman having recovered, 
 the bailiffs were released by the constable. Upon these facts, 
 
 (c) R. v. Buckle, cor. Garrow, B., Glouces- (e) Ante, p. 277, et seq. 
 
 ter Spring Ass. 1821. (/) 2 Chit. Cr. L. 145, note (a). 
 
 (d) The White Friars and its environs, (g) R. v. Osmer, 5 East, 304. 
 
 the Savoy, and the Mint in Southwark, were \h) 1 East, P. C. c. 5, s. 71, p. 304. 
 
 of this description. 
 
 vol. I. — 56
 
 882 Obstructing Process. [book ii. 
 
 Heath, J., was clearly of opinion that the constable and his assist- 
 ants were guilty of the assault and rescue, (i) 
 
 Where the obstruction of process by the rescue of a party arrested, 
 is accompanied, as is usually the case, with circumstances of violence 
 and assault upon the officer, the offence may be made the subject of a 
 proceeding by indictment ; and, as will be shown more fully in a sub- 
 sequent chapter, ( j) the rescue, or attempt to rescue a party arrested 
 on a criminal charge is usually punished by that mode of proceeding. 
 And the offence of rescuing a person arrested on mesne process, or in 
 execution after judgment, subjects the offender to a writ cf rescous, or 
 an action in which damages are recoverable, (k) And it has also 
 been the frequent practice of the Courts to grant an attachment 
 against such wrongdoers, it being the highest violence and contempt 
 that can be offered to the process of the Court. (/) 
 
 The forcibly rescuing goods distrained, and the rescuing cattle by 
 the breach of the pound in which they have been placed, have 
 been considered as offences at common law, and made the subject 
 of indictment, (m) In a case where a defendant was indicted 
 for rescuing goods distrained for church-rate, it seems not to have 
 been doubted that such a rescue was an indictable offence, (n) It 
 has before been stated, that an indictment will lie for taking goods 
 forcibly, if such taking be proved to be a breach of the peace ; (o) but, 
 as a mere trespass, without circumstances of violence, is not indict- 
 able ; (p) it has been doubted whether even a pound-breach, which 
 has been considered as a greater offence at common law than a rescue, (q) 
 is an indictable offence, if unaccompanied by a breach of the peace, (r) 
 But, on the other hand, it has been submitted that, as a pound-breach 
 is an injury and insult to public justice, it is indictable as such at 
 common law. (s) 
 
 Where a hayward had distrained a horse damage feasant on an 
 inclosed piece of pasture, and it was rescued from him on the way 
 to the pound, and before it was impounded ; it was held that this was 
 not indictable, for till the horse got to the pound the hayward was 
 merely acting as the servant of the owner of the land. (£) 
 
 (/) Anon. Exeter Sum. Ass. 1793. 1 {m) Cro. Circ. Comp. 198. 2 Starkie's 
 
 East, P. C c. 5, s. 71, p. 305. Crim. pi. 617. 2 Chit. dim. L. 201, pre- 
 
 (j) Post, ch. xxxvi. p. 904. cedents of indictments for rescuing goods 
 
 [k) Bac. Abr. tit. Rescue (C). Com. distrained for rent ; and Cro. Circ. Com]*. 
 
 Dig. tit. Rescous (D.). 199. 2 Chit. Crim. L. 204, 206, precedents 
 
 (/) Bac. Abr. ibid. Com. Dig. tit. Res- of indictments for pound-breaches. At the 
 cous (D.) 6. But, in order to ground an Bedfordshire Quarter Sessions, an indictment 
 attachment for a rescue, it seems there must for pound-breach was presented and tried, 
 be a return of it by the sheriff ; at least, if the Court acting on the passage in the text, 
 it was on an arrest of mesne process. Bac. P.. v. Butterfield, 17 Cox, C. C. 598. 
 Abr. ibid. 2 Hawk. P. C. c. 22, s. 34. (n) R. v. Williams, 1 Den. C. C. 529 ; 
 Anon. 6 Mod. 141. And see, as to the re- the point decided was that the distress war- 
 turn of the rescue by the sheriff, Com. Dig. rant was unlawful. 
 
 tit. Rescous (D.) 4, (D.) 5. Bac. Abr. tit. (o) Ante, p. 204. Anon. 3 Salk. 187. 
 
 Rescue (E.). R. v. Belt, 2 Salk. 586. R. (p) Ante, p. 204. 
 
 v. Elkins, 4 Burr. 2129. Anon. 2 Salk. 586. (?) Mirror of Justices, c. 2, s. 26. 
 
 R. v. Minify, 1 Str. 642. R. v. Ely, 1 Lord (r) 2 Chit. Crim. L. 204, note (b), re- 
 
 Raym. 35. Anon. 1 Salk. 586. 1 Lord ferring to 4 Leon. 12. 
 
 Raym. 589. Apparently an indictment (.?) 2 Chit. Crim. L. 204, note (b), and 
 
 would lie against an unqualified person who the authorities there cited, 
 
 had practised as a solicitor in a County (/) R. v. Bradshaw, 7 C. & P. 233, Cole- 
 
 Hourt, for contempt; see R. v. Judge of ridge, J. The learned judge seemed to think 
 
 Brompton County Court (1893), 2Q. B. 195. that, if the horse had been rescued after it
 
 chap, xxxiii.] Disobedience to Orders of Mag id rates. 883 
 
 It has been held in Ireland on an indictment for rescuing property 
 distrained for poor-rate, that it is not necessary to prove the making 
 of the rate, or that there is any sum due at the time of making the 
 distress; but the warrant to collect, if in the form and with the 
 requisites required by the Poor-law Act, will be sufficient prima facie 
 evidence of the authority of the collector; and that the section 
 which requires the sum to be collected to be specified in the warrant 
 is satisfied by a reference in the warrant to the collector's book de- 
 livered at the time to the collector, and by such reference the book 
 becomes incorporated with the warrant, (u) But where on a similar 
 indictment the warrant was in the same form as in the preceding case, 
 but the occupiers were only described as ' tenants of commons ' in the 
 collector's book, it was held that the collector had no authority to 
 distrain on the actual occupier, as the description in the book was 
 insufficient, (y) 
 
 The 6 & 7 Vict. c. 30, provides for the summary conviction of any 
 person who releases any cattle distrained on any inclosed land, (w) 
 
 The civil remedy, however, given by the 2 Will. & M. c. 5, s. 4, 
 will, in most cases of a pound-breach, or a rescue of goods distrained 
 for rent, be found the most desirable mode of proceeding, where the 
 offenders are responsible persons. That statute enacts that, upon 
 pound-breach, or rescous of goods distrained for rent, the person 
 grieved shall, in a special action on the case, recover treble damages 
 and costs against the offenders, or against the owner of the goods, if 
 they come to his use. (x) 
 
 It is laid down in the books that, if a rescue be made upon a dis- 
 tress, &c, for the King, an indictment lies against the rescuer. (?/) 
 And we have seen that a lessee, resisting with force a distress for 
 rent, or forestalling or rescuing the distress, will be guilty of the 
 offence of a forcible detainer, (z) 
 
 Sec. II. 
 
 Of Disobedience to Orders of Magistrates} 
 
 Disobedience to an order of the justices of the peace at their ses- 
 sions, made by them in the due exercise of the powers of their juris- 
 
 had been put in the pound, an indictment (w) See the 14 & 15 Vict. c. 92, s. 19, as 
 
 might have been maintained for the rescue. to these offences in Ireland. As to persons 
 
 (u) R. v. Brennan, 6 Cox, C. C. 381. impounding cattle, — supplying them with 
 
 The warrant was headed, 'General warrant food, see 12 & 13 Vict. c. 92, s. 5, 17 & 18 
 
 to collect and levy poor-rate, Gorey Union,' Vict. c. 60. 
 
 and directed the collector 'to levy the sev- (x) See, as to the proceedings upon this 
 
 eral poor-rates, and arrears of poor-rates, in statute, Bradby on Distresses, 282, et scq. 
 
 the annexed book set forth, from the several Bac. Abr. tit. Rescue (C). See 5 & 6 Will, 
 
 persons therein rated, or other persons liable 4, c. 50, s. 75, which imposes a penalty on 
 
 to pay the said rates and arrears of rates,' persons breaking the pound to rescue cattle, 
 
 and was signed by the chairman of the &c, found trespassing on highways, 
 
 guardians, two guardians, and the clerk of (y) F. N. B. (102 (G.). Com. Dig. tit. 
 
 the union at a meeting of the board. Rescous (D.), 3. 
 
 (v) R. v. Boyle, 7 Cox, C. C. 428. (a) Ante, p. 724. 
 
 American Note. 
 
 1 Disobedience to orders of magistrates tempt, but it would seem to be indictable, 
 in America is generally dealt with as con- See Bishop, i. s. 240.
 
 884 Disobedience to Orders of Magistrates. [book II. 
 
 diction, is an indictable offence. Thus, a party has been holden to be 
 guilty of an indictable offence, in disobeying an order of sessions for 
 the maintenance of his grandchildren, (a ) In this case it was moved 
 in arrest of judgment that, as the 43 Eliz. c. 2, s. 7, had annexed a 
 specific penalty, and a particular mode of proceeding, the course pre- 
 scribed by the Act ought to have been adopted, and that there could 
 be no proceeding by indictment : but, after able argument, and great 
 deliberation, the Court were of opinion that the prosecutor was at 
 liberty to proceed at common law, or in the method prescribed by the 
 statute ; and that there could be no doubt but that an indictment 
 would lie at common law for disobedience to an order of sessions, (b) 
 
 Upon the same principle it was holden that, where an Act of 
 Parliament gave power to the King in council to make a certain 
 order, and did not annex any specific punishment to the disobeying 
 it, such disobedience was an indictable offence, punishable as a mis- 
 demeanor at common law. (c) 
 
 Disobeying an order of one or more justices, when duly made, is 
 also a common-law offence, and therefore punishable by indictment, (d) 
 Thus a power to remove a pauper being given to two justices by the 
 13 & 14 Car. 2, c. 12, the not receiving him is a disobedience of that 
 statute for which an indictment will lie. (e) And, by Foster, J., ' In 
 all cases where a justice has power given him to make an order, and 
 direct it to an inferior ministerial officer, and he disobeys it, if there 
 be no particular remedy prescribed, it is indictable.' (/) 
 
 Where an order of justices is a nullity on the face of it, another 
 order may be made, and an indictment will lie for disobeying it. (g) 
 
 Where such an order is made, any person mentioned in it, and 
 required to act under it, must, upon its being duly served upon him, 
 lend his aid to carry it into effect, Thus where, upon a complaint 
 made by an excluded member of a friendly society, two persons, A. 
 and B., the then stewards of the society, were summoned, and an 
 order made by two justices that such stewards and the other mem- 
 bers of the society should forthwith reinstate the complainant ; it 
 was holden, that though this order was not served upon A. and B. 
 until they had ceased to be stewards, yet it was still obligatory upon 
 
 ; (a) R. v. Robinson, 2 Burr. 799, 800. the indictment were good. R. v. Walker, 
 
 (b) Id. ibid. See the principles upon 13 Cox, C. C. 94. 
 
 which this decision proceeded, ante, p. 192, (c) R. v. Harris, 4 T. R. 202. 2 Leach, 
 
 et seq. By the ' Epping Forest Amendment 549. 
 
 Act, 1872,' sect. 5, the Epping Forest com- (d) R. v. Balme, Cowp. 650. R. v. 
 
 missioners may make orders prohibiting, Fearnley, 1 T. R, 316. 
 
 until after their final report, any inelosure (e) R. v. Davis, 1 Bott. 361, pi. 378. 
 
 or waste of land within the forest, subject, Say. 163. Burn's Just. tit. Poor. Sec. XVII., 
 
 in their judgment, to any forestal or com- 2, i. 
 
 mon rights. The commissioners made a gen- (/) Burn's Just., ibid, 
 
 eral order prohibiting all persons from com- (g) R. v. Brisby, i Den. C. C. 416 ; 2 C. 
 
 nutting waste upon a piece of land described & K. 962. R. v. Marchant, 1 Cox, C. C. 
 
 until the final report, or until further order ; 203. R. v. Cant, 2 M. C. C. 271 ; C. & 
 
 all persons affected to be at liberty to apply Mars. 521. In R. v. Ferrall, 2 Den. C. C. 
 
 to them as there might be occasion. The 51, the question was whether, under a clause 
 
 defendant applied to the commissioners by in the Annual Mutiny Act, a soldier was 
 
 counsel as a person affected, but they refused freed from an indictment for disobeying a 
 
 to enter into the question raised. The de- bastardy order ; and the Court held that he 
 
 fendant was convicted upon an indictment was not, as it was a 'criminal matter;' 
 
 moved by certiorari for breach of this order, but the later Mutiny Acts are in different 
 
 Held, upon a case stated, that the order and terms.
 
 chap, xxxiii.] Disobedience to Orders of Magistrates. 885 
 
 them, as members of the society, to attempt to reinstate the com- 
 plainant ; and that their having ceased to be stewards was no justifi- 
 cation of entire neglect on their part, (h) Lord Ellenborough, C. J., 
 said at the trial, ' The order is not confined to the stewards alone, but 
 is made upon all the members of the society ; and the defendants 
 were members of the society independently of their being stewards, 
 and were bound, as members, to see that the order was obeyed : or, 
 at least, to have taken some steps for that purpose. As members, they 
 might have done something; as stewards, indeed, they might, with 
 greater facility, have enforced obedience to the order ; but each mem- 
 ber had it in his power to lend some aid for the attainment of that 
 object.' And when in the ensuing term a motion was made that a 
 verdict might be entered for the defendants, on the ground that, hav- 
 ing ceased to be stewards when the notice was served, they had not 
 been guilty of a criminal default ; the Court said, that if the defend- 
 ants had shown that they did everything in their power to restore 
 the party, in obedience to the order, they might have given it in evi- 
 dence by way of excuse, (i) 
 
 There must be personal service of an order on all persons who are 
 charged with a contempt of it ; and it was held, upon demurrer, to 
 be a decisive objection to an indictment for a disobedience and con- 
 tempt of an order of sessions, that it charged a contempt by six per- 
 sons of an order, which was only stated to have been served on four 
 of them, (j) 
 
 The entire order of a Court to pay the expenses of a prosecution, 
 under the 7 Geo. 4, c. 64, s. 26, must be served on the treasurer of the 
 county. Where, therefore, an order was made to pay an aggregate 
 sum, the details of which were annexed, and the attorney tore off the 
 details, and served the order for the payment of the aggregate sum 
 alone on the treasurer ; it was held, on a case reserved, that he was 
 not indictable for refusing to obey the order, (k) 
 
 It seems not to be necessary, in an indictment against a public 
 officer for disobedience of orders, to aver that the orders have not 
 been revoked. (I) But an indictment for disobeying an order of jus- 
 tices must show explicitly that the order was made ; and it is not 
 sufficient to state the order by way of recital, (m) It is said to be 
 more safe to aver that the defendant was requested to comply with 
 the terms of the order, (n) But if the statement of the order having 
 been served on all the defendants (which, as has been before observed, 
 
 (h) R. v. Gash, 1 Starkie, 41. The Acts (J) R - v - Kingston, 8 East, 41. R. v. 
 
 relating to Friendly Societies are consoli- Gilkes, 3 C. & P. 52. 
 
 dated and amended by the 38 & 39 Vict. c. (k) R, v. Jones, 2 Moo. C.C. R. 171 ; 9 
 
 60. C. & P. 401, S. C. 
 
 (i) Id. ibid. The motion was also made (/) R. v. Holland, 5 T. R. 607, 624, a 
 
 on another ground ; namely, a defect in the case of an indictment against the defendant 
 
 jurisdiction of the magistrates : two rnagis- for malversations in office while he was one 
 
 trates of the county of Middlesex, where the of the council at .Madias. 
 
 meetings of the society were held, having (m) R. v. Crowhurst, 2 Lord Ravin. 1363. 
 
 made the order, though the society had (?i) 2 Chit. Criin. L 279, note (g), citing 
 
 been originally established in London, and 1 T. R. 316, which is the case of R. !>. Fearn- 
 
 its rules enrolled at the sessions for London, ley, where an objection was taken to an 
 
 But the Court decided that the magistrates indictment that it did not contain such state- 
 
 of Middlesex had jurisdiction. See 33 Geo. ment ; but the Court did not find it neces- 
 
 3, c. 54, and 49 Geo. 3, c. 125, s. 1. R. v. sarv to <rive any opinion upon the point. 
 Wade, 1 B. & Ad. 861.
 
 886 Disobedience to Orders of Magistrates. [book ii. 
 
 is a necessary statement) be omitted, the want of such an allegation 
 will not be supplied by averring that they were all requested to per- 
 form the duties required by the order, (o) 
 
 Where an indictment for refusing to obey an order of justices to 
 pay a church-rate, alleged that the rate ' was duly made as by law in 
 that behalf required, and that the same was afterwards duly allowed 
 as by law in that behalf required/ and that ' the defendant was duly 
 rated ' in and by the said rate at the sum of sixteen shillings; it was 
 objected that the facts ought to have been stated which constituted 
 a due making and allowance of the rate and a due rating of the 
 defendant ; but it was held, first, that these introductory facts were 
 alleged only to show that the justices had jurisdiction to make the 
 order, and therefore they fell within the description of inducement, 
 in which such a general allegation was allowed. Secondly, that the 
 rest of the count showed that the justices had sufficient authority to 
 make the order, as there was a sufficient information by competent 
 persons to give them jurisdiction, (p) The same indictment stated 
 that a church-rate had been duly demanded of the defendant, and 
 that he had refused and neglected to pay the rate to W. A. and J. C, 
 who then were the churchwardens ; and it was held that, though it 
 did not state that they were churchwardens when the rate was de- 
 manded, it was sufficient that they were shown to be so when the 
 rate was neglected and refused to be paid ; for that was the offence, {q) 
 The same indictment alleged that a justice made his warrant (sum- 
 mons), whereby, ' after reciting as therein recited,' he summoned the 
 defendant, and the indictment did not state to whom the warrant 
 was directed ; and it was held that it was sufficient, for enough of 
 the warrant was stated without mentioning the recital, and it was 
 sufficiently averred that it was directed to the defendant, (q) The 
 same indictment averred that a summons was issued on the 30th of 
 May to appear on the 6th of June then next, and was ' before the 
 said 6th day of June, to wit, on the 30th of May ' personally served 
 on the defendant, who did not appear in pursuance of it ; and it was 
 held that it must be assumed that the justices satisfied themselves 
 that it had been served a reasonable time before the day of appear- 
 ance, otherwise they would have acted unjustly in making the order 
 in the absence of the defendant, and the intendment is always favour- 
 able to the validity of an order, (r) On the same indictment it was 
 also held that it is not necessary to set out the order according to the 
 tenor ; it is enough to set out the substance of it correctly, (s) The 
 same indictment did not aver the church-rate to have been in force 
 when the order to pay it was made, but it was held that, as it averred 
 that the rate continued in force at the time of the indictment, it was 
 quite sufficient, (t) It was also held that such an indictment need 
 not allege the date of the order, (w) as that was immaterial. 
 
 An indictment alleged that an appeal was made by the defend- 
 ants against a rate to the sessions, who dismissed the appeal, and 
 
 (o) R. v. Kingston, 8 East, 41, 53. (q) Ibid. 
 
 (p) R. v. Bidwell, 1 Den. C. C. 222. The (r) Ibid, 
 
 case was decided bv Parke, B., alone. See (s) Ibid. 
 
 31 & 32 Vict. c. 109, entitled, ' An Act for (t) Ibid, 
 
 the abolition of compulsory church rates.' (u) Ibid.
 
 chap, xxxiii.] Disobedience to Orders of Magistrates. 887 
 
 ordered the defendants 'immediately upon service of the said 
 order, or a true copy thereof,' to pay the churchwardens and over- 
 seers a sum for costs of the appeal, and that a true copy of the said 
 order was afterwards personally served upon each of the defend- 
 ants, and each of them had notice of the said order. Neverthe- 
 less, the defendants wilfully neglected and refused to pay. Upon 
 
 the trial the Clerk of the Peace produced the minutes of the 
 
 sions, and read the order, which ordered the defendants 'imme- 
 diately upon service of this order, or a true copy thereof,' to pay the 
 costs. The Clerk of the Peace stated that ' the costs were not taxed 
 during the actual sitting of the sessions, hut between the time of the 
 Court adjourning and its meeting. I reported to the magistrates 
 what I thought fit and proper costs ; and the Court adopted it. I 
 made a verbal statement, which the Court adopted. I gave both 
 parties an opportunity of attending. The defendants did not at- 
 tend. I wrote a letter to their solicitor. The appeal was dismissed 
 for want of due notice.' The defendants' attorney was the person 
 attending the appeal, and was present when the order was made. 
 There were four or five of the magistrates at the adjournment who 
 were at the original sessions. A witness proved that he served each 
 defendant with a paper, which he told them was a true copy of the 
 order, as in fact it was, and at the time of service read to each the 
 contents of a parchment writing, which was also a true copy of 
 the order, and was produced on the trial. It was objected, first, that 
 as notice to produce the copies served had not been given, evidence 
 could not be given that the copy served was a true copy ; but it was 
 held that a notice to produce the paper served would have been 
 notice to produce a notice, which is never required ; secondly, that an 
 order to pay ' upon service of the said order, or a true copy thereof,' 
 was bad on the face of it ; but it was held to be perfectly sufficient, — 
 that an order of sessions in that form was good. And the service was 
 also good, whether the book of the sessions or the parchment was the 
 order; for if the book was the original, it could not be shown at 
 the time of the service, and if the parchment was the original, 
 its contents were read over, (v) And, lastly, that the adjourned 
 sessions had no jurisdiction to fix the amount of costs ; but 
 the Court held that it was unnecessary to decide that point. The 
 magistrates must be taken to have ordered in the first instance, in 
 the presence of all the parties, that the defendants should pay such 
 costs as the officer might find to be due ; and the result of the evi- 
 dence being that both parties had an opportunity of attending the 
 taxation, and no objection being made w T hen the amount was stated in 
 Court, a state of things took place which amounted to a consent, and 
 therefore the order was valid, (w) 
 
 The 11 Geo. 2, c. 19, s. 16, enables two justices to put a landlord in 
 possession of premises in any case ' where one year's rent (x) is in 
 arrear, and the tenant deserts the premises and leaves them unculti- 
 
 (v) Per Coleridge, J., 'An order of the (iv) R. v. Mortlock, 7 Q. B. 459. 
 
 quarter sessions is not like an order of justices (x) Extended to one half year's rent by 
 
 out of sessions. It is the judgment of the 57 Geo. 3, c. 54. 
 Court, and that cannot be carried about : it 
 is sufficient if a copy be shown.'
 
 888 Disobedience to Orders of Magistrates. [book ii. 
 
 vated or unoccupied so as no sufficient distress can be had ; and sec. 
 17 empowers the next justice or justices of assize, on the appeal of 
 the tenant, to award restitution to the tenant. Upon an indictment 
 for disobeying the order of the justices of assize to restore possession 
 to the tenant, it seems that it is not necessary to prove the proceed- 
 ings before the magistrates preliminary to the restitution; and that it 
 is sufficient to put in the record made up by the justices of the peace, 
 in which, after reciting the complaint and other proceedings, they de- 
 clare that they put the landlord into possession ; and it seems unne- 
 cessary to prove the complaint of the landlord {y) 
 
 Upon the trial of an indictment for not paying a sum of money pur- 
 suant to an order of sessions made on an appeal by the defendant 
 against a certificate of two justices, for stopping up, diverting, and 
 turning a part of a public footway, the record of the order of sessions, 
 together with proof of the service of a copy of the order upon the de- 
 fendant, and a demand of the sum ordered thereby to be paid, to 
 which the defendant only answered that he did not owe anything, is 
 sufficient evidence to go to the jury, and it is not necessary to prove 
 aliunde the existence of the certificate or the fact of the appeal. An 
 order of sessions made upon such an appeal need not show the time 
 at which the certificate of the justices was lodged with the clerk of 
 the peace ; for the sessions have no duty to inquire into that fact, 
 unless the objection is raised before them, (z) 
 
 On the trial of an indictment against the stewards of a friendly 
 society for disobeying an order of justices, which recited that the rules 
 of such society had been enrolled, such recital is not evidence of that 
 fact, and it must be proved by other means, in order to show that the 
 justices had jurisdiction to make the order under the 33 Geo. 3, c. 54, 
 s. 2. (ft) Upon the trial of such an indictment, the Court will not 
 enter into the merits of the original case, nor will they hear objections 
 to the order which do not appear upon the face of it. (b~) But if it 
 appear on the face of the order that the justices had no jurisdiction 
 to make it, the defendant should be acquitted, without being left to 
 bring a writ of error, though the want of jurisdiction be apparent on 
 the face of the indictment, (c) 
 
 (?/) R. v. Sewell, 8 Q. B. 161. The very and none of the other commissioners, have 
 ground of the appeal might he that the jus- jurisdiction to make such an order. 
 tices of the peace had acted without any (s) R. v. Thornton, 2 Cox, C. C. 493. 
 complaint, and therefore the proof of the («) R. v. Gilkes, 8 B. & C. 439. The 
 complaint could not he necessary. The Acts relating to Friendly Societies are con- 
 Court held in this case that the order of the solidated and amended by the 38 & 39 Vict, 
 justices of assize must be made by them as c. 60. 
 
 individual justices, and not as a Court, and (b) R. v. Mitton, 3 Esp. R. 200, S. C. 
 
 therefore a certificate of such an order, signed Cald. 536. R. v. Gilkes, 3 C. & P. 52. Ab- 
 
 by the deputy clerk of assize in the same way bott, C. J. 
 
 as an order of Court, is not sufficient. It (c) R. v. Hollis, 2 Star. K. P. C. 536. 
 
 seems also that the order should be signed Abbott, C. J. R. v. Soper, 3 B. & C. 857. 
 by the justices of assize, and that they alone,
 
 CHAPTER THE THIRTY-FOURTH. 
 
 OF ESCAPES. 1 
 
 An escape is where one who is arrested gains his liberty before he 
 is delivered by the course of the law. (a) And it may be by the 
 party himself ; either without force before he is put in hold, or with 
 force after he is restrained of his liberty ; or it may be by others ; 
 and this also either without force, by their permission or negligence, 
 or with force, by the rescuing of the party from custody. Where the 
 liberation of the party is effected either by himself or others, without 
 force, it is more properly called an escape ; where it is effected by the 
 party himself with force, it is called prison-breaking ; and where it 
 is effected by others, with force, it is commonly called a rescue, (b) 
 In the present chapter it is proposed to consider those acts without 
 force, which more properly come under the title of escape. 
 
 There is little worthy of remark in the books respecting an escape 
 effected by the party himself, without force : 2 but the general prin- 
 ciple appears to be, that, as all persons are bound to submit them- 
 selves to the judgment of the law, and to be ready to be justified 
 by it, those who, declining to undergo a legal imprisonment when 
 arrested on criminal process, free themselves from it by any artifice, 
 and elude the vigilance of their keepers, before they are put in hold, 
 are guilty of an offence in the nature of a high contempt, and pun- 
 ishable by fine and imprisonment, (c] And it is also criminal in a 
 a prisoner to escape from lawful confinement, though no force or 
 artifice be used on his part to effect such purpose. Thus, if a prisoner 
 go out of his prison without any obstruction, the doors being opened 
 by the consent or negligence of the gaoler, or if he escape in any 
 other manner, without using any kind of force or violence, he will 
 be guilty of a misdemeanor ; and if his prison be broken by others, 
 without his procurement or consent, and he escape through the 
 breach so made, he may be indicted for the escape, (d) 
 
 (a) Terms de la' Ley. (d) 1 Hale, 611. 2 Inst. 589, 590. 
 
 (6) 1 Hale, 590. 2 Hawk. P. C. cc. 17, Sumni. 108. Staund. P. C. 30, 31. 2 
 18, 19, 20, 21. Hawk. P. C. c. 18, ss. 9, 10. 
 
 (c) 2 Hawk. P. C. c. 17, s. 5. 4 Black. 
 Com. 129. 
 
 American Notes. 
 
 1 There are statutes in some of the States to prison breach is common law in America, 
 of America relating to escapes, pi - ison breach Bishop, Vol. ii., s. 1106. 
 and rescue ; but generally the law there is 2 In such a case the court in America 
 
 the same as the English common law, and will not inflict a punishment greater than 
 the statute, 1 Ed. 2, st. 2, post, p. 899, as that from which the prisoner escaped. S. 
 
 v. Doud, 7 Conn. Rep. 384.
 
 890 Of Escapes suffered by Officers. [book ii. 
 
 Upon an indictment for an escape from the house of correction, 
 after couviction for a capital offence and conditional pardon, it was 
 held that a certificate of the former conviction by the clerk of assize 
 was not evidence, there being no Act which made it evidence, (e) As 
 to the mode of proving a conviction, see vol. 3, " Evidence," 34 & 35 
 Vict. c. 112, s. 18. It was decided upon the 56 Geo. 3, c. 27, s. 8 [now 
 repealed], that the certificate of a former conviction, authorised by 
 that statute, should set forth the effect and substance of the convic- 
 tion ; and that stating it to have been for felony only was insufficient. 
 The prisoner was indicted for being at large after a sentence of trans- 
 portation for seven years; the indictment only stated that he had 
 been convicted of felony, without specifying the nature of that felony ; 
 and the certificate to prove the former conviction was in the same 
 form ; and the judges thought this case decided by a former case of 
 R. v. Sutcliffe, and that both the indictment and certificate were in- 
 sufficient. (/") 
 
 The 11 & 12 Vict. c. 42, ss. 12, 13, 14 and 16, provides for the 
 apprehension of persons charged with indictable offences, who escape 
 into Ireland, the Isles of Man, Guernsey, Jersey, Alderney, or Sark, 
 and Scotland, and for the dealing with such persons after their 
 apprehension ; and the Act also provides for the apprehension of 
 persons so charged who escape from these territories into England. 
 
 Escapes effected, or, perhaps, more properly, suffered by others than 
 the party himself, without force, by permission or negligence, may be 
 either — I. By officers ; or, II. By private persons. 
 
 Sec. I. 
 Of Escapes suffered by Officers} 
 
 An escape of this kind must be from a justifiable imprisonment for 
 a criminal matter, after an actual arrest. 
 
 As there must be an actual arrest, it has been holden, that if an 
 officer, having a warrant to arrest a man, see him shut up in a house, 
 and challenge him as his prisoner, but never actually have him in his 
 custody, and the party get free, the officer cannot be charged with an 
 escape, (g) 
 
 The arrest and imprisonment must be justifiable ; for, if a party 
 be arrested for a supposed crime, when no such crime was committed, 
 
 (e) R. v. Smith, East. T. 1788. MS. (f) R. v. Watson, Mich. T. 1821. MS. 
 
 Bavley, J. So neither the production of the Bayley, J., and R. & R. 468. The prisoner 
 
 calendar of the sentences signed by the clerk was remitted to his original sentence. The 
 
 of assize, and by him delivered to' the gover- 56 Geo. 3, c. 27, s. 3, authorised a certificate 
 
 nor of the prison, nor the evidence of a person containing the effect and substance only, 
 
 who heard sentence passed, is sufficient to omitting the formal part, of every Jndict- 
 
 prove that a prisoner is in lawful custody ment, conviction, &c. See 34 & 35 Vict. 
 
 under a sentence of imprisonment passed at c. 112, s. 18, vol. 3, 'Evidence.' 
 
 the assizes ; the record itself should be pro- (g) 2 Hawk. P. C. c. 19, s. 1. 
 duced ; or other proof as provided by statute. 
 R. v. Bourdon, 2 C. & K. 366, Maule, J. 
 
 American Note. 
 1 See Weaver v. C, 5 Casey, 445.
 
 chap, xxxiv.] Of Escapes suffered by Officers. 891 
 
 and the party neither indicted nor appealed, or for such a slight 
 suspicion of an actual crime and by such an irregular mittimus as 
 will neither justify the arrest nor imprisonment, the officer is not 
 guilty of an escape by suffering the prisoner to go at large, (h) But 
 it seems as if a warrant of commitment plainly and expressly charge 
 the party with treason or felony, though it be not strictly formal, the 
 gaoler suffering an escape is punishable ; and that where commit- 
 ments are good in substance, the gaoler is as much bound to observe 
 them as if they were made ever so exactly, (z) It is stated as a good 
 general rule upon this subject that, whenever an imprisonment is so 
 far irregular that it will be no offence in the prisoner to break from it 
 by force, it can be no offence in the officer to suffer him to escape. (J) 
 
 The imprisonment must not only be justifiable, but also for some 
 crim inal matter. But the escape of one committed for petit larceny (k) 
 only was criminal ; and it seems most agreeable to the general reason 
 of the law that the escape of a person committed for any other crime 
 whatsoever should also be criminal. (I) The imprisonment must 
 also be continuing at the time of the escape ; and its continuance 
 must be grounded on that satisfaction which public justice de- 
 mands for the crime committed. So that if a prisoner be acquitted, 
 and detained only for his fees, it will not be criminal to sutler him 
 to escape, though the judgment were that he should be discharged, 
 ' paying his fees ; ' he being in such case detained only as a debtor : 
 but if a person, convicted of a crime, be condemned to imprisonment 
 for a certain time, and also ' until he pays his fees,' it is said, that 
 perhaps an escape of such person, after the time of his imprisonment 
 is elapsed, without paying his fees, may be criminal ; as it was part 
 of the punishment that the imprisonment should be continued till 
 the fees should be paid, (in) 
 
 The next important incpuiry upon this subject will be, whether 
 the escape be voluntary or negligent, as the former is a much more 
 serious offence than the latter. 
 
 Whenever an officer, having the custody of a prisoner charged 
 with, and guilty of, a capital offence, knowingly gives him his liberty 
 with an intent to save him either from his trial or execution, such offi- 
 cer is guilty of a voluntary escape ; and thereby involved in the guilt 
 of the same crime of which the prisoner is guilty, and for which 
 he was in custody, (n) Hawkins says, that it seems to be the 
 opinion of Sir M. Hale, (o) that in some cases an officer may be 
 adjudged guilty of a voluntary escape who had no such intent to 
 save the prisoner, but meant only to give him a liberty which, by 
 
 h) 2 Hawk. P. C. c. 19, s. 2. (m) 2 Hawk. P. C. c. 19, s. 4. Thisseem> 
 
 (i) 2 Hawk. P. C. c. 19, s. 24. A com- to be a good reason : but Hawkins says that 
 
 niitment to a prison, and not to a person, it is to be intended only where the fees are 
 
 was held good in R. v. Fell, 1 Lord Rayni. due to others as well as to the gaoler ; for, 
 
 424. otherwise, the gaoler would be the only suf- 
 
 j Id. ibid. s. 2. And see post, chap, ferer by the escape ; and that it would be 
 
 xxxvii. hard to punish him for suffering an injury to 
 
 (k) The distinction between grand ami himself only in the non-payment of a debt 
 
 petit larceny was abolished by the 7 & 8 in his power to release. 
 
 Geo. 4, c. 29, s. 2, and 24 & 25 Vict. c. 96, (n) Staund. P. C. 33. 2 Hawk. P. C. 
 
 s. 2. c. 19, s. 10. 4 Black. Com. 129. 
 
 (/) 2 Hawk. P. C. c. 19, s. 3. 1 Hale, (o) Sum. 113, 1 Hale, 596, 597. 
 592.
 
 892 Of Escapes suffered by Officers. [book ii. 
 
 law, he had no colour of right to give ; as if a gaoler should bail a 
 prisoner who is not bailable : but he withholds his assent to that 
 opinion, on the grounds that it is not sufficiently supported by 
 authorities, and does not seem to accord with the purview of the 
 5 Edw. 3, c. 8, relating to the improper bailing of persons by the 
 marshals of the King's Bench. He says also, that it seems to 
 be agreed that a person who has power to bail is guilty only of a 
 negligent escape, by bailing one who is not bailable; and that 
 there are some cases wherein an officer seems to have been 
 found to have knowingly given his prisoner more liberty than he 
 ought to have had (as by allowing him to go out of prison on a 
 promise to return ; or to go amongst his friends, to find some who 
 would warrant goods to be his own which he is suspected to have 
 stolen), and yet seems to have been only adjudged guilty of a 
 negligent escape, (q) And he concludes by saying, that if, in these 
 cases, the officer were only guilty of a negligent escape, in suffering 
 the prisoner to go out of the limits of the prison, without any security 
 for his return, he could not have been guilty in a higher degree if 
 he had taken bail for his return ; and that from thence it seems 
 reasonable to infer that it cannot be in all cases a general rule 
 that an officer is guilty of a voluntary escape by bailing his prisoner, 
 whom he has no power to bail, but that the judgment to be made 
 of all offences of this kind must depend upon the circumstances of 
 the case ; such as the heinousness of the crime with which the 
 prisoner is charged, the notoriety of his guilt, the improbability of 
 his returning to render himself to justice, the intention of the officer, 
 and the motives on which he acted, (r) 
 
 By the 28 & 29 Vict. c. 126, entitled, An Act to consolidate and 
 amend the law relating to prisons, ss. 63, 64, and 65, prisoners may 
 under certain circumstances be removed from one prison to another 
 and into different jurisdictions. 
 
 A negligent escape is where the party arrested or imprisoned 
 escapes against the will of him that arrests or imprisons him, and 
 is not freshly pursued and taken again before he has been lost 
 sight of. (s) And, from the instances of this offence mentioned in 
 the books, it seems that where a party so escapes the law will 
 presume negligence in the officer. Thus, if a person in custody on 
 a charge of larceny, suddenly and without the assent of the constable, 
 kill, hang, or drown himself, this is considered as a negligent escape 
 in the constable, (t) And if a prisoner charged with felony break 
 a gaol, it is said that this seems to be a negligent escape ; because 
 there wanted either the due strength in the gaol that should have 
 secured him, or the due vigilance in the gaoler or his officers that 
 should have prevented it, (u) But it is submitted that it would be 
 
 {q) Hawkins says, however, that it must (s) Dalt. c. 159. Burn's Just. tit. Escape, 
 
 be confessed that, in these eases, the prisoner IV. 
 
 was only accused of larceny, ami that it does (f) Dalt. c. 159. 
 
 not appear whether he were bailable or not ; (u) 1 Hale, 600, where it is said that 
 
 and that, generally, the old cases concerning 'therefore it is lawful for the gaoler to 
 
 this subject are so very briefly reported that hamper them with irons, to prevent their 
 
 it is very difficult to make an exact state of escape.' But see the note (a) ibid., where 
 
 the matter from them. it is said that this liberty can only be in- 
 
 (/•) 2 Hawk. P. C. c. 19, s. 10. tended where the officer has just reason to 
 
 fear an escape, as when- the prisoner is un-
 
 chap, xxxiv.] Of Escapes suffered hj Officers. 893 
 
 competent to a person charged with a negligent escape under such 
 circumstances to show in his defence that all due vigilance was 
 used, and that the gaol was so constructed as to have been considered 
 by persons of competent judgment a place of perfect security. Un- 
 doubtedly an escape happening from defects in these particulars 
 would come within the principle of guilty negligence in those con- 
 cerned in the proper custody of the criminal ; and neglect in not 
 keeping gaols in a proper state of repair, by those who are liable 
 to the burthen of repairing them, appears in many instances to 
 have been treated as an indictable offence, tending to the great hin- 
 drance and obstruction of justice. (V) 
 
 A person who has power to bail is guilty only of a negligent escape 
 by bailing one who is not bailable. Thus if a justice of peace bails 
 a person not bailable by law, it excuses the gaoler, and is not felony 
 in the justice, but a negligent escape, for which he is finable at com- 
 mon law, and by the justices of gaol delivery, (w) Whoever de facto 
 occupies the office of gaoler is liable to answer for a negligent escape. (x) 
 But it seems that an indictment for a negligent escape will only lie 
 against those officers upon whom the law casts the obligation of safe 
 custody, and will not lie against the mere servants of such officer. 
 Thus, where the indictment was against one of the yeomen wardens 
 of the Tower and the gentleman gaoler, for permitting Colonel Parker, 
 who was committed for high treason, to escape, it appeared that the 
 constable of the Tower had committed the colonel to their special 
 care: but the Court held that the defendants were not such officers 
 as the law took notice of, and therefore could not be guilty of a 
 negligent escape, (y) It appears, however, that a sheriff is as much 
 liable to answer for an escape suffered by his bailiff as if he had 
 actually suffered it himself ; that the Court may charge either the 
 sheriff or bailiff for such an escape ; and, that if a deputy gaoler be not 
 sufficient to answer for a negligent escape, his principal must answer 
 for him. (s) 
 
 The difference between a voluntary and negligent escape will also 
 require to be attended to in considering the effect of the retaking of 
 a prisoner after he has been suffered to escape. 
 
 When an officer has voluntarily suffered a prisoner to escape, it 
 
 rul\', or makes any attempt for that purpose ; this offence, 4 Wentw. 363, Cro. Circ. Conlp. 
 
 but that otherwise, notwithstanding the 189. Cro. Circ. Ass. 398. 3 Chit. Crim. L. 
 
 common practice of gaolers, it seems alto- 668, 669. 
 
 get her unwarrantable, and contrary to the (ir) At common law, according to 25 
 
 mildness and humanity of the laws of Eng- Edw. 3, 39 (in the last edition of the year 
 
 land, by which gaolers are forbid to put their books mispaged 25 Edw. 3, 82 a) and by the 
 
 prisoners to any pain or torment. Co. P. C. justices of gaol delivery, by the 1 & 2 Ph. & 
 
 34, 35. Custodes gaolarum pecnam sibi emu- M. c. 13. See 1 Hale, 596, and as to i 
 
 missis non augeant, nee eos torqueant vel by admitting to bail or to improper liberty, 
 
 redimant, sed omni saivitid remotd pictateque ante, p. 891. 
 
 adhibitd jitdicia debite exequantur. Flet. (x) 2 Hawk. P. C. c. 19, s. 28. 
 
 Lib. 1, cap. 26. And the Mirror of Justices, (?/) R. v. Hill and Dod, Old Bailey, Jan. 
 
 ch. 5, s. 1, n. 54, says that it is an abuse 1694. Burn's Just. tit. Escape, III. R. v. 
 
 that prisoners should be charged with irons, Rich, Old Bailey, Jan. 1694, MS. Bayley, J. 
 
 or put to any pain, before they be attainted (z) 2 Hawk. P. C. c. 19, s. 29, and R. v. 
 
 of felony: and Lord Coke in his comment Fell, 1 Lord Raym. 424. 2 Salk. 272. 
 
 on the statute of Westm. 2, c. 11, is express, Hawkins says, ' But if the gaoler who suffers 
 
 that by the common law it might not be an escape have an estate for life or years in 
 
 done. 2 Inst. 381. the office, I do not find it agreed how far he 
 
 (v) See the precedents of indictments for in reversion is liable to be punished.'
 
 894 Negligent Escapes. [book ir. 
 
 is said that he can no more justify the retaking him than if he had 
 never had him in custody before ; because, by his own free consent, 
 he hath admitted that he hath nothing to do with him : but if the 
 party return, and put himself again under the custody of the officer, 
 it seems that it may probably be argued that the officer may lawfully 
 detain him, and bring him before a justice in pursuance of the 
 warrant. («) 
 
 An officer making fresh pursuit after a prisoner, who has escaped 
 through his negligence, may retake him at any time afterwards, 
 whether he find him in the same or a different county: and it is 
 said generally in some books, that an officer, who has negligently 
 suffered a prisoner to escape, may retake him, wherever he finds 
 him, without mentioning any fresh pursuit; and, indeed, since the 
 liberty gained by the prisoner is wholly owing to his own wrong, 
 there seems to be no reason why he should have any manner of 
 advantage from it. (b) 1 If the officer pursue a prisoner, who flies 
 from him, so closely as to retake him without losing sight of him, 
 the law regards the prisoner as being so much in his power all the 
 time as not to adjudge such flight to amount to an escape ; but if 
 the officer once lose sight of the prisoner, it seems to be the better 
 opinion that he will be guilty of a negligent escape, though he 
 should retake him immediately afterwards, (c) And if he has been 
 fined for the offence it is clear that he will not avoid the judgment 
 of his fine by retaking the prisoner, (rf) And it is also clear that 
 he cannot excuse himself by killing a prisoner in the pursuit, though 
 he could not possibly retake him ; but must, in such case, be content 
 to submit to such fine as his negligence shall appear to deserve, (e) 
 
 The proceedings against persons charged with having suffered 
 escapes must in general be by presentment or indictment, or they 
 may be by information. (/) 
 
 But where persons present in a Court of record are committed 
 to prison by such Court, the keeper of the gaol, as he is bound to 
 have them always ready to produce when called for, if he fail to 
 produce them, will be adjudged guilty of an escape, without further 
 inquiry ; unless he have some reasonable matter to allege in his 
 excuse ; as that the prison was set on fire, or broken open by enemies, 
 &c, for he will be concluded by the record of the commitment from 
 denying that the prisoners were in his custody, (g) And some have 
 holden, (/*,) that if a gaoler say nothing in excuse of such an escape, 
 it shall be adjudged voluntary : but it seems difficult to maintain 
 that where it stands indifferent whether an escape be negligent or 
 
 (a) 2 Hawk. P. C. c. 19, s. 12 ; c. 13, s. 9. (/) R. v. The Gaoler of Shrewsbury, 1 
 Dalt. c. 169. Burn's Just. tit. Escape. Str. 532, where the Court refused to grant 
 
 (b) 2 Hawk. P. C. c. 19, s. 12. an attachment against the gaoler for a volun- 
 
 (c) Staund. P. C. 33. 1 Hale, 602. 2 tary escape of one in execution for obstructing 
 Hawk. P. C. c. 19, ss. 6, 13. an excise officer in the execution of his office, 
 
 (d) 2 Hawk. P. C. c. 19, ss. 12, 13. but ordered him to show cause why there 
 
 (e) Staund. P. C. 33. 1 Hawk. P. C. should not be an information. 
 
 c. 28, ss. 11, 12. 2 Hawk. P. C. c. 19, ss. 6, (</) 2 Hawk. P. C. c. 19, s. 15. 
 
 13. (h) Staund. P. C. 34. 1 Hale, 599, 603. 
 
 American Note. 
 1 See Pearl v. Rawdin, 5 Day, 244 ; Griffin v. Brown, 2 Pick. 304.
 
 CHA.P. xxxiv.] Of Escapes suffered hy Officers. 895 
 
 voluntary, it ought to be adjudged a crime of so high a nature, with- 
 out a previous trial. {%) With respect to other prisoners not com- 
 mitted in such manner, but in the custody of a gaoler or other 
 person by any other means whatsoever, it seems to be agreed that 
 the person who had them in custody is in no case punishable for 
 an escape, until it be presented, (J) But it is laid down as a rule, 
 that though where an escape is finable, the presentment of it is 
 traversable ; yet that where the offence is amerciable only, there 
 the presentment is of itself conclusive ; such amerciaments being 
 reckoned amongst those minima de quibus non curat lex:(k) and 
 this distinction is said to be well warranted by the old books. (I) 
 
 It is laid down in the books, that a person who has suffered 
 another to escape cannot be arraigned for such escape as for felony, 
 until the principal be attainted ; on the ground that he is only 
 punishable in this degree as an accessory to the felony, and that the 
 general rule is, that no accessory ought to be tried until the principal 
 be attainted ; (m) but that he may be indicted and tried for a mis- 
 prision before any attainder of the principal offender; for, whether 
 such offender were guilty or innocent, it was a high contempt to 
 suffer him to escape. If, however, the commitment were for high 
 treason, and the person committed actually guilty of it, it is said that 
 the escape is immediately punishable as high treason also, whether 
 the party escaping be ever convicted of such crime or not ; and the 
 reason given is, that there are no accessories in high treason, (n) 
 
 Every indictment for an escape, whether negligent or voluntary, 
 must expressly show that the party was actually in the defendant's 
 custody for some crime, or upon some commitment upon suspicion ; (0) 
 and judgment was arrested upon an indictment which stated that the 
 prisoner was in the defendant's custody, and charged with a certain 
 crime, but did not state that he was committed for that crime ; for 
 a person in custody may be charged with a crime, and yet not be in 
 custody by reason of such charge, (p) But where a person was com- 
 mitted to the custody of a constable by a watchman, as a loose and 
 disorderly woman and a street-walker, it was holden, upon an indict- 
 ment against the constable for discharging her, that by an allegation 
 of his being charged with her, ' so being such loose,' &c, it was suffi- 
 ciently averred that he was charged with her ' as such loose,' &c. ; 
 and it was also holden not to be necessary to aver that the defend- 
 ant knew the woman to be a street-walker, (q) And every indict- 
 
 (*) 2 Hawk. P. C. c. 19, s. 15. In Cro. Circ. Ass. 338, is an indictment as for 
 
 (j) 2 Hawk. P. C. c. 19, s. 16. a misdemeanor against a gaoler, for wilfully 
 (k) Staund. P. C. c. 32, p. 36. permitting a prisoner to escape who was 
 (I) 2 Hawk. P. C. c. 19, s. 21, and see under sentence of imprisonment for the term 
 post, p. 897, as to escapes finable or amer- of six months, after a conviction of grand 
 ciable. larceny ; but it seems that it ought to have 
 (m) See ante, p. 180. But as all acces- been laid as a felony. See 2 Starkie, Crira. 
 sories may now be tried before their Plead. 600, note (b), referring to R. v. Bur- 
 principals this reason fails, and there seems ridge, 3 P. Wms. 497. 
 no doubt that a person who has suffered a (n) 2 Hawk. P. C. c. 19, s. 26. 
 felon to escape is an accessory after the fact, (o) Id. ibid. s. 14. 
 
 R. v. Burridge, 3 P. Wms. 439, post, and (p) R. v. Fell, 1 Lord Eaym. 424. 2 
 
 therefore a person who suffers or aids the Salk. 272. 
 
 escape of a felon may be tried for a sub- (q) R. v. Bootie, 2 Burr. 864 ; and see 
 
 stantive felony as an accessory after the as to the sufficiency of such averments, R. v. 
 
 fact ; and see Holloway v. R., 17 Q. B. 317. Boyall, 2 Burr. 832.
 
 896 Punishment. [book ii. 
 
 ment should also show that the prisoner went at large ; (r) : and also 
 the time when the offence was committed for which the party was in 
 custody ; not only that it may appear that it was prior to the escape, 
 but also that it was subsequent to the last general pardon, (s) If the 
 indictment be for a voluntary escape, it must allege that the defend- 
 ant feloniously and voluntarily permitted the prisoner to go at 
 large ; (t) and must also show the species of crime for which the 
 party was imprisoned; for it will not be sufficient to say, in general, 
 that he was in custody for felony, &c. (u) But it is questionable 
 whether such certainty, as to the nature of the crime, be necessary in 
 an indictment for a negligent escape ; as it is not in such case mate- 
 rial whether the person who escaped were guilty or not. (v) 
 
 By the statute of Westminster, 3 Edw. 1, c. 3, (w) the proceedings 
 and trial for the offence of an escape were to be had before the justices 
 in eyre ; but it was adjudged that the jurisdiction of the Court of 
 King's Bench was not restrained by that statute, that Court being 
 itself the highest Court of eyre, (x) The 31 Edw. 3, c. 14, enacts, 
 that the escape of thieves and felons, and the chattels of felons, &c, 
 from thenceforth to be judged before any of the King's justices, shall 
 be levied from time to time, &c, by which it seems to be implied 
 that other justices, as well as those in eyre, may take cognizance of 
 escapes ; and it is certain that justices of gaol delivery may punish 
 justices of peace for a negligent escape, in admitting persons to bail 
 who are not bailable, (y) 
 
 As to the mode of proving the conviction see ante, p. 890. 
 
 In considering the punishment for this offence, it will be necessary 
 again to attend to the distinction between a voluntary and negligent 
 escape. 
 
 It seems to be generally agreed that a voluntary escape amounts to 
 the same kind of crime as the offence of which the party was guilty, 
 and for which he was in custody , whether the person escaping were 
 actually committed to some gaol, or under an arrest only, and not 
 committed ; and whether he were attainted, or only accused of such 
 crime, and neither indicted nor appealed, (z) But the voluntary 
 escape of a felon was within the benefit of clergy, though the felony 
 for which the party was in custody were ousted, (a) An escape 
 suffered by one who wrongfully takes upon him the keeping of a gaol 
 seems to be punishable in the same manner as if he were rightfully 
 entitled to the custody , for the crime is in both cases of the same 
 
 (r) 2 Hawk. P, C. c. 19, s. 14, where it le banke le roy est un eire, et plus haul que un 
 
 is said that this is most properly expressed eire, car si le eire sea in un county, et le banke 
 
 by the words exvoU ad largum. le roy vcicjne la, le eire. cessera. 
 
 (s) 2 Hawk. P. C. c. 19, s. 14. But upon (y) 2 Hawk. P. C. c. 19, s. 19, ante, 
 
 an indictment for an escape the Court will p. 893. 
 
 not intend a pardon ; it must be shown by (z) 2 Hawk. P. C. c. 19, s. 22. And it 
 
 the defendant, by way of excuse. R. v. Fell, is said to be no excuse of such escape that 
 
 1 Lord Raym. 424. ' the prisoner had been acquitted on an indict- 
 
 (t) Felonice el Voluntarie A. B. ad ment of death, and only committed till the 
 
 largum ire permisit. year and day should be passed, to give the 
 
 (u) 2 Hawk. P. C. c. 19, s. 14. widow or heir an opportunity of bringing 
 
 (v) Id. ibid. their appeal. Id. ibid. 
 
 \w) Repealed by 26 & 27 Vict. c. 125. (a) 1 Hale, 599. 
 
 (x) Staund. P. C. c. 32, p. 35. Eo que 
 
 American Note. 
 i S. v. Maberry, 1 Strobh. 144.
 
 chap, xxxi v.J Of Escapes suffered by Officers. 897 
 
 ill consequence to the public, (b) But no one is punishable in this 
 degree for a voluntary escape but the person who is actually guilty 
 of it ; therefore, the principal gaoler is only finable for a voluntary 
 escape suffered by his deputy, (c) One voluntary escape is said to 
 amount to a forfeiture of a gaoler's office, (d) 
 
 No escape will amount to a capital offence unless the cause for 
 which the party was committed were actually such at the time of the 
 escape ; its becoming a capital offence afterwards, as by the death of 
 a party wounded at the time of the escape, but not then dead, will 
 not be sufficient, (e) 
 
 Whenever a person is found guilty upon an indictment or present- 
 ment of a negligent escape of a criminal actually in his custody, he 
 ought to be condemned in a certain sum, to be paid to the King as a 
 fine. (/) And it seems that, by the common law, the penalty for 
 suffering the negligent escape of a person attainted was of course a 
 hundred pounds, and for suffering such escape of a person indicted, 
 and not attainted, five pounds ; and that if the person escaping were 
 neither attainted nor indicted, it was left to the discretion of the 
 Court to assess such a reasonable forfeiture as should seem proper. 
 And it seems also, that if the party had escaped twice, these penalties 
 were of course to be doubled ; but that the forfeiture was no greater 
 for suffering a prisoner to escape who had been committed on two 
 several accusations, than if he had been committed but on one. (g) 
 It is the better opinion that one negligent escape will not amount to 
 a forfeiture of a gaoler's office : yet if a gaoler suffer many negligent 
 escapes, it is said that he puts it in the power of the Court to oust 
 him of his office at discretion, (h) 
 
 A negligent escape may be pardoned by the King before it hap- 
 pens, but a voluntary one cannot be so pardoned, (i) Upon an in- 
 dictment for an escape a pardon must be shown by the defendant by 
 way of excuse, (j) 
 
 Sec. II. 
 
 Of Escapes suffered by Private Persons. 
 
 The law with respect to escapes suffered by private persons is in 
 general the same as in relation to those suffered by officers : it will 
 be sufficient, therefore, to mention shortly the circumstances under 
 which it is considered that a private person may be guilty of an escape, 
 and the punishment to which he will be liable. 
 
 (b) 2 Hawk. P. C. c. 19, s. 23. amerciament ; and in others it is spoken of 
 
 (c) R. v. Fell, 1 Lord Raym. 424. 2 Salk. generally as the imposition of a certain sum, 
 272. 1 Hale, 597, 598. and without any mention of either fine or 
 
 (d) 2 Hawk. P. C. c. 19, s. 30. amerciament.' 
 
 (e) 2 Hawk. P. C. c. 19, s. 25. (g) 2 Hawk. P. C. c. 19, s. 33. 
 (/) 2 Hawk. P. C. c. 19, s. 31, where the (h) Id. ibid. s. 30. 
 
 author says, ' It seems most properly to be (i) 2 Hawk. P. C. c. 19, s. 32 ; and more 
 
 called a fine. But this does not clearly appear fully, id. c. 37, s. 28. Such a pardon would 
 
 from the old books ; for in some of them it be in the nature of an indemnity, 
 seems to be taken as a fine, in others as an (j) R. v. Fell, 1 Lord Raym. 424. 
 
 vol. i, — 57
 
 898 Of Escapes suffered by Private Persons. [book ii. 
 
 It seems to be a good general rule, that wherever any person has 
 another lawfully in his custody, whether upon an arrest made by 
 himself or another, he is guilty of an escape if he suffer him to go at 
 large before he has discharged himself, by delivering him over to some 
 other who by law ought to have the custody of him. And if a private 
 person arrest another for suspicion of felony, and deliver him into the 
 custody of another private person, who receives him and suffers him 
 to go at large, it is said that both of them are guilty of an escape ; 
 the first, because he should not have parted with him till he had 
 delivered him into the hands of a public officer ; the latter, because, 
 having charged himself with the custody of a prisoner, he ought, at 
 his peril, to have taken care of him. (k) 
 
 But where a private person, having made an arrest for suspicion of 
 felony, delivers over his prisoner to the proper officer, as the sheriff 
 or his bailiff, or a constable, from whose custody the prisoner escapes, 
 he, the private person, will not be chargeable. (/) 
 
 If an escape suffered by a private person were voluntary, he is 
 punishable as an officer would be for the same offence ; (m) and if it 
 were negligent, he is punishable by fine and imprisonment, at the 
 discretion of the Court, (n) 
 
 (k) 2 Hawk. P. C. c. 20, ss. 1, 2. 1 Hale, examine into the case, and either commit, 
 
 595. Sum. 112. bail, or discharge the part)' as the circum- 
 
 (l) 2 Hawk. P. C. c. 20, ss. 3, 4. 1 Hale, stances may require. See Reed v. Cowmeadow, 
 
 594, 595. Staund. P. C. 34. Sum. 112, 114. 7 C. & P. 821, per Parke, B. ; and Edwards 
 
 The proper course for a private person, who v. Ferris, 7 C. & P. 542, Patteson, J. 
 has arrested a person on suspicion of felony, (m) Ante, p. 896. 
 
 to pursue, is to take him as soon as he rea- (») 2 Hawk. P. C. c. 20, s. 6. 
 
 sonably can before a magistrate, who will
 
 CHAPTER THE THIRTY-FIFTH. 
 
 OF PRISON BREAKING BY THE PARTY CONFINED. 1 
 
 Where a party effects his own escape by force, the offence is 
 usually called prison-breaking ; and such breach of prison, or even 
 the conspiring to break it, was felony at the common law, for what- 
 ever cause, criminal or civil, the party was lawfully imprisoned ; (a) 
 and whether he were actually within the walls of a prison or only in 
 the stocks, or in the custody of any person who had lawfully arrested 
 him. (/>) But the severity of the common law is mitigated by the 
 statute Be frangentibus prisonam, 1 Edw. 2, stat. 2, which enacts, 
 ' That none, from henceforth, that breaketh prison, shall have judg- 
 ment of life or member for breaking of prison only ; except the cause 
 for which he was taken and imprisoned did require such judgment, 
 if he had been convict thereupon, according to the law and custom of 
 the realm.' Thus though to break prison and escape, when lawfully 
 committed for any treason or felony, remains still felony as at common 
 law ; to break prison when lawfully confined upon any other inferior 
 charge, is punishable only as a high misdemeanor, by fine and 
 imprisonment, (c) 
 
 It will be proper to consider some of the points which have been 
 holden in the construction of this statute. 
 
 Any place whatsoever wherein a person, under a lawful arrest for 
 a supposed crime, is restrained of his liberty, whether in the stocks, 
 or the street, or in the common gaol, or the house of a constable or 
 private person, or the prison of the ordinary, is properly a prison 
 within the meaning of the statute ; for imprisonment is nothing else 
 but a restraint of liberty, (d) The statute, therefore, extends as well 
 to a prison in law as to a prison in deed, (e) 
 
 With respect to the regularity of the imprisonment, it is clear, that 
 if a person be taken upon a capias, awarded on an indictment or 
 appeal against him for a supposed treason or felony, he is within the 
 statute if he break the prison, whether any such crime were or were 
 not committed by him or any other person ; for there is an accusation 
 against him on record, which makes his commitment lawful, however 
 he may be innocent, or the prosecution groundless. And if an iuno- 
 
 (a) 4 Black. Com. 129. 1 Hale, 607. (c) 4 Black. Com. 130. 
 Bract. I. 3, c. 9. 2 Inst. 588. (d) 2 Hawk. P. C. c. 18, s. 4. 
 
 (b) 2 Hawk. P. C. c. 18, s. 1. (e) 2 Inst. 589. 
 
 American Note. 
 
 1 It has been held in America that a prisoners to escape, is not guilty of prison, 
 person wrongfully confined who breaks out breach. S. v. Leach, 7 Conn. 752. 
 of prison, and thereby leaves a way for other
 
 900 Of Prison-Breaking. [book ii. 
 
 cent person l>e committed by a lawful mittimus, on such a suspicion 
 of felony, actually done by some other, as will justify his imprison- 
 ment, though he be neither indicted nor appealed, he is within the 
 statute if he break the prison ; for he was legally in custody, and 
 ought to have submitted to it until he had been discharged by due 
 course of law. (/) 
 
 But if no felony at all were done, and the party be neither indicted 
 nor appealed, no mittimus for such a supposed crime will make him 
 guilty within the statute, by breaking the prison; his imprisonment 
 being unjustifiable. And though a felony were done, yet if there 
 were no just cause of suspicion either to arrest or commit the party, 
 his breaking the prison will not be felony if the mittimus be not in 
 such form as the law requires ; because the lawfulness of his impris- 
 onment in such case depends wholly on the mittimus: but if the 
 party were taken up for such strong causes of suspicion as will be a 
 good justification of his arrest and commitment, it seems that it will 
 be felony in him to break the prison, though he happen to have been 
 committed by an informal warrant. (7) 
 
 The next inquiry will be as to the nature of the crime for which 
 the party must be imprisoned, in order to make his breaking the 
 prison felony within the meaning of the statute. It is clear that 
 the offence for which the party was imprisoned must be a capital 
 one at the time of his breaking the prison, and not become such by 
 matter subsequent, (h) Though an offender breaking prison, while it 
 is uncertain whether his offence will become capital, is highly punish- 
 able for his contempt, by fine and imprisonment, (i) But it is not 
 material whether the offence for which the party was imprisoned 
 were capital at the time of the passing of the statute, or were made 
 so by subsequent statutes ; for, since all breaches of prison were 
 felonies by the common law, which is restrained by the statute only 
 in respect of imprisonment for offences not capital, when an offence 
 becomes capital, it is as much out of the benefit of the statute as if it 
 had always been so. (j) 
 
 If the crime for which the party is arrested, and with which he is 
 charged in the mittimus, do not require judgment of life or member, 
 and the offence be not in fact greater than the mittimus supposes it 
 to be, it is clear, from the express words of the statute, that his break- 
 ing the prison will not amount to felony. (&) And though the 
 offence for which the party is committed be supposed in the mittimus 
 to be of such a nature as requires a capital judgment, yet if, in the 
 event, it be found to be of an inferior nature, and not to require such 
 a judgment, it seems difficult to maintain that the breaking of the 
 prison on a commitment for it can be felony ; as the words of the 
 statute are, ' except the cause for which he was taken and imprisoned 
 require such a judgment.' (1c) And on the other hand, if the offence 
 which was the cause of the commitment be in truth of such a nature 
 as requires a capital judgment, but be supposed in the mittimus to be 
 
 (/) 2 Hawk. P. C. c. 18, ss. 5, 6. 2 Inst. (h) Ante, p. 897. 
 
 590. Sum. 109. 1 Hale, 610, 611. (i) 2 Hawk. P. C. c. 18, s. 14. 
 
 [g) 2 Hawk. P. C. c. 18, ss. 7, 15 ; c. 16, (j) 2 Hawk. P. C. c. 18, s. 13. 
 
 s. 13, et seq. 2 Inst. 590, 591. Sum. 109. (jfc) See the Statute, ante, p. 899. 
 1 Hale, 610, 611.
 
 chap, xxxv.] Of Prison-Breaking. 901 
 
 of an inferior degree, it may probably be argued that the breaking of 
 the prison by the party is felony within the meaning of the statute ; 
 for the fact for which he was arrested and committed, does, in truth, 
 require judgment of life, though the nature of it be mistaken in the 
 mittimus. (I) It is not material whether the party who breaks his 
 prison were under an accusation only, or actually attainted of the 
 crime charged against him; for persons attainted, breaking prison, 
 are as much within the exception of the statute as any others, (m) 
 
 A person committed for high treason becomes guilty of felony 
 only, and not of high treason, by breaking the prison and escaping 
 singly, without letting out any other prisoner : but if other persons, 
 committed also for high treason, escape together with him, and his 
 intention in breaking the prison were to favour their escape as weU 
 as his own, he seems to be guilty of high treason in respect of their 
 escape, because there are no accessories in high treason ; and such 
 assistance given to persons committed for felony will make him who 
 gives it an accessory to the felony, and by the same reason a principal 
 in the case of high treason, (n) 
 
 The breach of the prison within the meaning of the statute must 
 be an actual breaking, and not such force and violence only as may be 
 implied by construction of law ; therefore if the party go out of a 
 prison without any obstruction, the prison doors being open through 
 the consent or negligence of the gaoler, or if he otherwise escape, 
 without using any kind of force or violence, it is said that he is 
 guilty of a misdemeanor only, (o) But the breaking need not be 
 intentional ; as where a prisoner made his escape from a house of 
 correction, by tying two ladders together, and placing them against 
 the wall of the yard, but in getting over threw down some bricks 
 which were placed loose at the top (so as to give way upon being 
 laid hold of), the judges were unanimously of opinion that this was 
 a prison-breach. Q?) And such breaking must be either by the 
 prisoner himself, or by others through his procurement, or at least 
 with his privity ; for if the prison be broken by others without his 
 procurement or consent, and he escape through the breach so made, 
 it seems to be the better opinion that he cannot be indicted for the 
 breaking, but only for the escape, (q) And the breaking must not be 
 from the necessity of an inevitable accident happening, without the 
 contrivance or fault of the prisoner; as if the prison should be set 
 on fire by accident, and he should break it open to save his life, (r) 
 
 (l) 2 Hawk. P. C. c. 18, s. 15. It should (p) R. v. Haswell, East. T. 1821. R, & 
 
 be observed, however, that Hawkins, after R. 458. Richardson, J., thought that if 
 
 giving his reasons for these conclusions, says this had been an escape only, it would not 
 
 that no express resolution of the points ap- have been felony. 
 
 pearing, and the authors who have ex- (q) 2 Hawk. P. C. c. 18, s. 10. Pult.de 
 
 pounded the statute (see 2 Inst. 590, 591 ; Pac. 1476, pi. 2, where it is said, that if a 
 
 Sura. 109, 110; 1 Hale, 609) seeming rather stranger breaks the prison, in order to help 
 
 to incline to a different opinion, he shall a prisoner committed for felony to escape, 
 
 leave these matters to the judgment of the who does escape accordingly, this is felony, 
 
 reader. not only in the stranger who broke the 
 
 (m) Staund. P. C. c. 32. 2 Hawk. P. C. prison, but also in the prisoner that escapes 
 
 c. 18, s. 16. by means of this breach, as he consents to 
 
 (n) 2 Hawk. P. C. c. 18, s. 17. Ben- the breach of the prison by taking advantage 
 
 stead's case, Cro. Car. 583. Limerick's case. of it. 
 Kel. 77. (/) 1 Hale, 611. 2 Inst. 590. Sum. 108. 
 
 (o) 1 Hale, 611. 2 Inst. 590.
 
 902 Indictment and Punishment. [book ii. 
 
 It seems also that no breach of prison will amount to felony, 
 unless the prisoner escape, (s) 
 
 A party may be arraigned for prison-breaking before he is con- 
 victed of the crime for which he was imprisoned (the proceeding 
 differing in this respect from cases of escape or rescue), on the ground 
 that it is not material whether he be guilty of such crime or not, and 
 that he is punishable as a principal offender in respect of the breach 
 of prison itself, (t) But if the party has been indicted and acquitted 
 of the felony for which he was committed, he is not to be indicted 
 afterwards for the breach of prison ; for though, while the principal 
 felony was untried, it was indifferent whether he were guilty of it or 
 not, or rather the breach of prison was a presumption of the guilt of 
 the principal offence, yet, upon its being clear that he was not guilty 
 of the felony, he is in law as a person never committed for felony ; 
 and so his breach of prison is no felony. (V) 
 
 The indictment for a breach of prison, in order to bring the 
 offender within the intention of the statute, must specially set forth 
 his case in such manner that it may appear that he was lawfully in 
 prison, and for such a crime as requires judgment of life or member ;. 
 and it is not sufficient to say in general ' that he feloniously broke 
 prison;' (v) as there must be an actual breaking to constitute the 
 offence, (w) It is necessary that such breaking be stated in the 
 indictment, (x) 
 
 The offence of prison-breaking and escape, by a party lawfully 
 committed for any treason or felony, is, as we have seen, of the 
 degree of felony, (?/) and will of course be punishable as such: (z) 
 but it should be observed, that it was a felony within clergy though 
 the principal felony for which the party was committed were ousted 
 of clergy, as in case of robbery or murder, (a) And in this it differs 
 from the offence of a voluntary escape, which is punishable in the 
 same degree as the offence for which the party suffered to escape was 
 in custody. (6) Where the prison-breaking is by a party lawfully 
 confined upon any inferior charge, it is punishable as a high mis- 
 prision, by fine and imprisonment, (c) 
 
 (s) 2 Hawk. P. C. c. 18, s. 12. alent to an acquittal by a jury, that the de- 
 
 (t) 2 Inst. 592. 1 Hale, 611. 2 Hawk. fendant was legally in custody, although no 
 
 P. C. c. 18, s. 18. evidence was taken upon oath to justify his 
 
 (u) 1 Hale, 612, where the learned writer remand, and that these facts were no de- 
 
 also says, that if the party should be first fence to the indictment for breaking prison. 
 
 indicted for the breach of prison, and then be R. v. Waters, 12 Cox, C. C. 390. 
 
 acquitted of the principal felony, he may (v) 2 Hawk. P. C. c. 18, s. 20. 
 
 plead that acquittal of the principal felony, (»■) Ante, p. 901. 
 
 in bar to the indictment for the breach of (x) K. v. Burridge, 3 P. Wms. 483. 
 
 prison. W. was given into custody without Staund. 31 a. 2 Inst. 589, et scq. 
 
 a warrant on a charge of felony. He was (y) Ante, p. 899. 
 
 conveyed before a magistrate, who remanded \z) As this is a felony, for which no pun- 
 
 him in custody without any evidence on ishment is specially provided, it is punish- 
 
 oath. W. was" removed to a lock-up from able under the 7 & 8 Geo. 4, c. 28, ss. 8, 9, 
 
 which he escaped. The charge of felony and 1 Vict. c. 90, s. 5, ante, p. 65. 
 
 made against him was dismissed by the («) 1 Hale, 612. 
 
 magistrates. Held, per Martin, B., that the \b) Ante, p. 900. 
 
 dismissal by the magistrates was not equiv- (c) 2 Hawk. P. C. c. 18, s. 21. 1 
 
 American Note. 
 1 In New York it is felony. See P. & see C. v. Briggs, 5 Met. 559. C. v. Barber, 
 Dnell, 3 Johns. 449 ; as to Massachusetts, 133 Mass. 399.
 
 chap, xxxv.] Of Prison-Breaking . 903 
 
 The prisoner was found guilty upon an indictment, which charged 
 that he had been convicted of horse-stealing,, and sentenced to suffer 
 death ; and that his Majesty extended his mercy to him, on condi- 
 tion of being imprisoned and kept to hard labour, in the House of 
 Correction at Brixton Hill, for two years : that he was committed to 
 and confined in the said house of correction ; and that he, before the 
 expiration of the two years, did feloniously break the said house of cor- 
 rection, and make his escape out of it, and go at large. The judges 
 were unanimously of opinion that this was punishable as a common- 
 law felony by imprisonment not exceeding a year, to begin from the 
 passing of the sentence ; and that, if thought right, the prisoner might 
 be whipped three times in addition to the imprisonment, (d) 
 
 The 1 & 2 Vict. c. 82, established a prison for young offenders at 
 Parkhurst in the Isle of Wight ; and sec. 12 provides for the punish- 
 ment of any such offender who breaks prison or escapes from his 
 place of confinement, &c. ; and sec. 14 provides for the place of trial 
 and evidence in such cases, (e) 
 
 (d) R. v. Haswell, East. T. 1821. R. & See note (z), supra. The whipping clauses 
 R. 458. It does not appear that the 31 have, however, now been repealed. 
 Geo. 3, c. 46, was alluded to as applicable to (e) There was a similar enactment with 
 
 this case. The statute, however (except regard to the prison at Millbank, but it has 
 sec. 7), has been repealed by 4 Geo. 4, c. 64. been repealed. As to Pentonville, see 5 & 6 
 
 Vict. c. 29, ss. 23, 28.
 
 CHAPTER THE THIRTY-SIXTH. 
 
 OF RESCUE ; AND OF ACTIVELY AIDING IN AN ESCAPE, OR IN 
 AN ATTEMPT TO ESCAPE. 
 
 Eescue, or the offence of forcibly and knowingly freeing another 
 from arrest or imprisonment, is, in most instances, of the same nature 
 as the offence of prison-breaking, which has been treated of in the pre- 
 ceding chapter. 
 
 Thus it is laid down, that whatever is such a prison that the party 
 himself would, by the common law, be guilty of felony in breaking 
 from it, in every such case a stranger would be guilty of as high a 
 crime at least in rescuing him from it. But though, upon the princi- 
 ple that wherever the arrest of a felon is lawful the rescue of him is 
 a felony, it will not be material whether the party arrested for felony, 
 or suspicion of felony, be in the custody of a private person or of an 
 officer ; yet if he be in the custody of a private person, it seems that 
 the rescuer should be shown to have knowledge of the party being 
 under arrest for felony, (a) In cases where the imprisonment is so 
 far groundless or irregular, or for such a cause, or the breaking of it 
 is occasioned by such a necessity, &c, that the party himself breaking 
 the prison is, either by the common law or by the 1 Edw. 2, st. 2, Be 
 ft ■" n r/cntibus prisonam, saved from the penalty of a capital offender; 
 a stranger who rescues him from such an imprisonment is, in like 
 manner, also excused, (b) 
 
 It has been stated in the preceding chapter, that, where a person 
 committed for high treason breaks the prison and escapes, letting out 
 other persons, committed also for high treason, he seems to be guilty 
 of high treason, in case his intention in breaking the prison were to 
 favour the escape of such other persons as well as his own : (c) and it 
 is clear that a stranger who rescues a person committed for and 
 guilty of high treason, knowing him to be so committed, is, in all 
 eases, guilty of high treason, (d) It has been holden also, that he 
 will be thus guilty whether he knew that the party rescued were 
 committed for high treason or not : and that he would, in like man- 
 ner, be guilty of felony by rescuing a felon, though he knew not that 
 the party was imprisoned for felony, (e) 
 
 (a) 1 Hale, 606. judges (on a special commission), seriatim, 
 
 (b) 2 Hawk. P. C. 21, ss. 1, 2. 2 Inst, that the breaking of a prison where traitors 
 589. Staund. P. C. 30, 31. Ante, p. 899, are in durance, and causing them to escape, 
 et seq. was treason, although the parties did not 
 
 (c) Ante, p. 901. know that there were any traitors there ; 
 
 (d) 2 Hawk. P. C. c. 21, s. 7. Staund. and that, in like manner, to break a prison 
 P. C. 11, 32. Sum. 109. 1 Hale, 237. whereby felons escape, is felony, without 
 
 (e) R. v. Benstead, Cro. Car. 583, where, knowledge of their being imprisoned for such 
 it is said that it was resolved by ten of the offence. And see 1 Hale, 606. But Hawk-
 
 chap, xxxvi.] Rescue. 905 
 
 As the party himself seems not to be guilty of felony by breaking 
 the prison, unless he actually go out of it, (/) so the breaking of a 
 prison by a stranger, in order to free the prisoners who are in it, is 
 said not to be felony, unless some prisoner actually by that means get 
 out of prison. (#) 
 
 The sheriff's return of a rescue is not of itself sufficient to put the 
 party to answer for it as a felony, without indictment or present- 
 ment, (h) And it is the better opinion that he who rescues one im- 
 prisoned for felony cannot be arraigned for such offence as a felony, 
 until the principal offender be first attainted, (i) unless the person 
 rescued were imprisoned for high treason, in which case the rescuer 
 may be immediately arraigned ; all being principals in high treason. 
 But it is said that he may be immediately proceeded against for a 
 misprision only if the King please : (j) and if the principal be dis- 
 charged, or found guilty only of an offence not capital, such as petit 
 larceny, &c, though the rescuer cannot be charged with felony, yet 
 he may be fined and imprisoned for a misdemeanor. (Jc) 
 
 The indictment for a rescue, like that for an escape, (I) or for break- 
 ing prison, (m) must specially set forth the nature and cause of the 
 imprisonment, and the special circumstances of the fact in ques- 
 tion, (ti) And the word rescussit, or something equivalent to it, must 
 be used to show that it was forcible and against the will of the officer 
 who had the prisoner in his custody, (o) 
 
 The rescue of one apprehended for treason is itself treason : and 
 the party rescuing one in custody for felony, or suspicion of felony, 
 will, as we have seen, be guilty of a crime of the same kind ; though 
 not in all cases punishable in the same degree ; for the rescuer was 
 entitled to his clergy, though the crime of the prisoner rescued were 
 not within clergy, (p) Accordingly it was held that rescuing a 
 person under commitment for burglary was not a transportable 
 offence, but was punishable only as a felony, within clergy, at com- 
 mon law. (</) The 1 & 2 Geo. 4, c. 88, s. 1, has since enacted, ' that 
 if any person shall rescue, or aid and aasist in rescuing, from the 
 lawful custody of any constable, officer, head-borough, or other person 
 whomsoever, any person charged with, or suspected of, or committed 
 for any felony, or on suspicion thereof, then, if the person or persons 
 so offending shall be convicted of felony, and be entitled to the bene- 
 fit of clergy, and be liable to be imprisoned for any term not exceed- 
 ing one year, it shall be lawful for the Court, by or before whom any 
 
 ins (P. C. c. 21, s. 7) says that this opin- (j) 2 Hawk. P. C. c. 21, s. 8. 
 
 ion is not proved by the authority of the \k) 1 Hale, 598, 599. 
 
 case (1 Hen. 6, 5) on which it seems to be (I) Ante, p. 890. 
 
 grounded. It should be mentioned, however, (m) Ante, p. 902. 
 
 that Benstead's case is spoken of in R. v. (n) 2 Hawk. P. C. c. 21, s. 5. In R. v. 
 
 Burridge, 3 P. Wins. 468, as having been Westbury, 8 Mod. 357, it was holden that 
 
 cited and allowed to be law at an assembly an indictment for a rescue of goods levied 
 
 of all the judges of England, except the Chief must set forth the fieri facias at large ; and 
 
 Justice of the Common Pleas, in Limerick's that setting forth quod cum virtule brevis, 
 
 case, Kel. 77. &c, de fieri facias, and a. warrant thereon be 
 
 (/) Ante, p. 901. levied, &c, and that the defendant rescued 
 
 (g) 2 Hawk. P. C. c. 18, s. 12 ; c. 21, them, is not sufficient, 
 s. 3. (o) P. v. Burridge, 3 P. Wins. 483. 
 
 (h) 1 Hale, 606. (p) 1 Hale, 607.' 
 
 (i) See ante, p. 895, note (»>). (?) R. v. Stanley, R. & R. 432.
 
 906 Of Aiding an Escape. [book n. 
 
 such person or persons shall be convicted, to order and direct, in case 
 it shall think fit, that such person or persons, instead of being so 
 fined and imprisoned as aforesaid, shall be transported (r) beyond the 
 seas for seven (s) years, or be imprisoned only, or be imprisoned and 
 kept to hard labour in the common gaol, house of correction, or peni- 
 tentiary house, for any term not less than one (t) and not exceeding 
 three years.' 
 
 Where the party rescued was in custody for a misdemeanor only, 
 the rescuer will be punishable as for a misdemeanor ; for, as those 
 who break prison are punishable for a high misprision, by fine and 
 imprisonment, in those cases wherein they are saved from judgment 
 of death by the 1 Edw. 2, stat. 2, Be franyentibus prisonam ; so also 
 are those who rescue such prisoners, in the like cases, punishable in 
 the same manner, (u) Where a prisoner was indicted for a misde- 
 meanor in aiding and assisting in the rescue of a person, who was 
 apprehended and was in custody under the warrant of a justice of 
 peace, which had been granted upon the certificate of the clerk of the 
 peace of the county, reciting that a true bill for a misdemeanor had 
 been found against the party apprehended ; and it was objected that 
 the warrant was illegal, as justices of peace had only authority to 
 issue warrants upon oath made of the facts, which authorized the 
 issuing such warrants : it was held that the warrant was legal, and 
 that the prisoner was guilty of a misdemeanor, in assisting in the 
 rescue of the person apprehended under it. (r) 
 
 It has been held to be a misdemeanor at common law to aid a per- 
 son to escape from custody, who was confined under the remand of 
 the Commissioners for the Eelief of Insolvent Debtors, and not on 
 any criminal charge, (w) 
 
 The rescue of a prisoner in any of the superior courts, committed 
 by the justices, is a great misprision ; for which the party, and the 
 prisoner (if assenting) will be liable to be punished by imprisonment 
 for life, forfeiture of lands for life, and forfeiture of goods and chattels, 
 though no stroke or blow were given, (x) 
 
 The aiding and assisting a prisoner to escape out of prison, by 
 whatever means it may be effected, is an offence of a mischievous 
 nature, and an obstruction to the course of justice: and the assisting 
 a felon in making an actual escape, is an offence of the degree of 
 felony, (y) In a case which underwent elaborate discussion, the 
 Court of King's Bench held, that where a person assisted a piisoner 
 who had been convicted of felony within clergy, and, having been 
 
 (r) Penal servitude by the 20 & 21 Vict. MSS. C. S. G. S. C, 5 C. k P. 148. J. 
 
 c. 3, s. 2, ante, p. 73. A. Park and Patteson, JJ. 
 
 (.9) And not less than three years. See [w) R. v. Allan, C. & M. 295. Erskine 
 
 ante, p. 79. and Wightman, JJ. 1 
 
 (t) See the 9 & 10 Vict. c. 24, s. 1. (a;) 1 East, P. C. c. 8, s. 3, pp. 408, 410. 
 
 (u) 2 Hawk. P. C. c. 21, s. 6. 4 Black. Bac. Abr. tit. Rescue (C). 3 Inst. 141. 22 
 
 Com. 130. Edw. 3, 13. 
 
 (v) R. v. Stokes, Stafford Sum. Ass. 1831, (y) R. v. Tillev, 2 Leach, 671. 
 
 American Note. 
 
 1 The rescue of a prisoner confined under escape of a prisoner so confined is not. 
 civil process is an indictable misdemeanor Mr. Bishop, however (Vol. ii. s. 1073), says 
 (see 2 Hawk. P. C. c. 21, s. 1) ; but the that in both cases it should be so deemed.
 
 chap, xxxvi.] Of Aiding an Escape. 907 
 
 sentenced to be transported for seven years, was in custody under 
 such sentence, to escape out of prison, the person so assisting was an 
 accessory after the fact to the felony, (z) The Court proceeded \\\«<w 
 the ground that one so convicted of felony, within the benefit of 
 clergy, and sentenced to be transported for seven years, continues a 
 felon till actual transportation and service pursuant to the sentence ; 
 and that the assistance given in this case amounted, in law, to a 
 receiving, harbouring, or comforting, such felon, (a) But they held 
 the indictment to be defective, in not charging that the defendant 
 knew that the principal was guilty, or convicted, of felony. (&) The 
 offence of aiding a prisoner to escape out of prison appears also to 
 have been considered as an accessorial offence in a case of piracy, (c) 
 
 Aiding the escape of a clergyable felon, who had had his clergy 
 and been burnt in the hand, but ordered, under 18 Eliz., to be impris- 
 oned, would not, it should seem, have subjected the party to punish- 
 ment as for aiding the escape of a felon, (d) 
 
 Several statutes, some of which have been already mentioned, and 
 others which will be referred to in the course of the work, especially 
 provide for the punishment of those who rescue or aid in the escape 
 of persons apprehended or committed for the particular offences 
 enumerated in those Acts. There are also some special provisions by 
 statutes upon this subject, which may be noticed shortly in this 
 place. 
 
 By the 25 Geo. 2, c. 37, s. 9, (f) ' If any person or persons whatso- 
 ever shall by force set at liberty, or rescue, or attempt to rescue or 
 set at liberty, any person, out of prison, who shall be committed for 
 or found guilty of murder ; or rescue, or attempt to rescue, any per- 
 son convicted of murder going to execution, or during execution, 
 every person so offending shall be deemed, taken, and adjudged to be 
 guilty of felony, and shall suffer death without benefit of clergy.' (/) 
 
 The 52 Geo. 3, c. 156, s. 1, enacts, that ' every person who shall 
 knowingly and wilfully aid or assist any alien enemy of his Majesty, 
 being a prisoner of war in his Majesty's dominions, whether such 
 prisoner shall be confined as a prisoner of war in any prison or other 
 place of confinement, or shall be suffered to be at large in his 
 
 (z) R. v. Burridge, 3 P. Wras. 439. ranted by law. See R. v. Stanley, R. & R. 
 
 (a) The assistance, as stated in the spe- 432. 
 
 cial verdict in this case, was not particularly (c) R. v. Scadding, Yelv. 134. 1 East, 
 
 specified ; the statement was, that the de- P. C. c. 17, s. 14, p. 810. 
 
 fendant (who was confined in the same gaol (d) See the judgment of Treby, C. J., in 
 
 with the party whom he assisted to escape) the Earl of Warwick's case, 13 St. Tr. 1018, 
 
 ' did wilfully aid and assist the said W. P., as to the commitment under this statute 
 
 so being in custody as aforesaid, to make being a collateral and new thing. 
 
 his escape out of the said gaol.' But any as- (e) Repealed by the 9 Geo. 4, c. 31, s. 1, 
 
 sistance given to one known to be a felon, ' except so far as relates to rescues and at- 
 
 in order to hinder his suffering the punish- tempts to rescue.' 
 
 ment to which he is condemned, is a suffi- (f) This punishment is abolished, and 
 
 cient receipt to make a man an accessory another substituted by the 1 Vict. c. 91, 
 
 after the fact. Ante, p. 177. ss. 1, 2, see ante, p. 258. Principals in the 
 
 (b) 3 P. Wins. 492. The prisoner was second degree are punishable like principals 
 charged upon a second indictment as an ac- in the first degree, and as to accessories, see 
 cessory, knowing the principal to have been ante, p. 161, et seq. By the alteration of the 
 under sentence of transportation; and was mode of the disposal of the bodies of murder- 
 tried upon this second indictment, con- ers by the 24 & 2f) Vict. c. 103, s. 3, Vol. III. 
 victed, and sentenced to be transported, id. Murder, sec. 10 of this Act seems to be vir- 
 499, 503. But such sentence was not war- tually repealed. C. S. G.
 
 908 Aiding Attempts to Escape. [book ii. 
 
 Majesty's dominions or any part thereof, on his parole, to escape 
 from such prison, or other place of confinement, or from his Majesty's 
 dominions, if at large upon parole,' shall, upon conviction, be adjudged 
 guilty of felony, and be liable to be transported for life, or for four- 
 teen or seven years, ( <j) 
 
 Sec. 2. Every person who shall knowingly and wilfully aid or 
 assist any such prisoner at large on parole in quitting any part of 
 his Majesty's dominions where he may be on his parole, although 
 he shall not aid or assist such person in quitting the coast of any 
 part of his Majesty's dominions, shall be deemed guilty of aiding 
 the escape of such person within the Act. 
 
 Sec. 3. ' If any person or persons owing allegiance to his Majesty, 
 after any such prisoner as aforesaid hath quitted the coast of any 
 part of his Majesty's dominions, in such his escape as aforesaid, 
 shall, knowingly and wilfully, upon the high seas, aid or assist 
 such prisoner in his escape to or towards any other dominions or 
 place, such persons shall also be adjudged guilty of felony, and be 
 liable to be transported as aforesaid ; ' and such offences committed 
 upon the high seas, and not within the body of any county, may 
 be tried in any county within the realm. (It) Previously to the 
 passing of this Act, upon an indictment for a misdemeanor in unlaw- 
 fully aiding and assisting a prisoner at war to escape, where it 
 appeared that such prisoner was acting in concert with those under 
 whose charge he was placed, in order to effect the detection of the 
 defendant, who was supposed to have been instrumental in the 
 escapes of other prisoners, and the prisoner in question neither 
 escaped nor intended to escape : it was held that the offence was 
 not complete, and that a conviction for such offence was therefore 
 wrong, (i) 
 
 The mere aiding an attempt of persons confined to make an escape, 
 though no escape should ensue, is made highly penal by the 16 
 Geo. 2, c. 31, s. 1, (/) which enacts, that 'if any person shall, by 
 
 (g) Now penal servitude for life or for plicable to the maintenance of a prison for 
 
 not less than three years. The principals in such division) in England and Wales, at 
 
 the second degree are punishable like the least one house of correction ; and one gaol 
 
 principals in the first degree ; and as to ac- and one house of collection in the several 
 
 cessories, see ante, p. 161, et seq. cities, towns, and places mentioned in Sched- 
 
 (h) By sec. 4, the Act is not to prevent ule A. annexed to the Act, and the pro- 
 offenders from being prosecuted, as they visions of the Act are to extend in the man- 
 inight have been if the Act had not been ner thereinafter mentioned, to every such 
 passed ; but no person prosecuted otherwise gaol and house of correction maintained at 
 than under the provisions of the Act is to the expense of such county, riding, division, 
 be liable to be prosecuted for the same of- city, town, or place, and to the several gaols 
 fence under the Act ; and no person prose- and houses of correction in the cities of Lon- 
 euted under the Act is, for the same offence, don and Westminster ; by sec. 76 and 5 
 to be otherwise prosecuted. Geo. 4, c. 85, s. 27, the Act does not extend 
 
 (i) R. v. Martin, Trin. T. 1811, R. & R. to the hospital of Bethlehem and prison of 
 
 196. Bridewell, nor to the King's Bench or Fleet 
 
 (./) This Act is repealed by the 4 Geo. 4, prison, nor to the prison of the Marshalsea 
 c. 64, s. 1, as far ' as relates to the escape of or Palace Courts, the Millbank Penitentiary, 
 any prisoner from any gaol or prison to which or Gloucester Penitentiary, nor to an}' ships 
 this Act shall extend ; ' and by sec. 2 there or vessels provided for the reception and 
 is to be in every county in England and employment of convicts sentenced to trans- 
 Wales one common gaol, and in every county portation ; and by the .'. Geo. 4, c. 85, s. 9, 
 not divided into ridings or divisions, and in so much of the 4 Geo. 4 as relates to Can- 
 eyery riding or division of a county (having terbnry, Lichfield, and Lincoln is repealed, 
 distinct commissions of the peace, or dis- It is very difficult, therefore, to say how far the 
 tinct rates in the nature of county rates, ap- 16 Geo. 2, c. 31, is now repealed. C. S. G.
 
 chap, xxxvi.] Aiding Attempts to Escape. 909 
 
 any means whatsoever, be aiding or assisting to any prisoner to 
 attempt to make his or her escape from any gaol, although no 
 escape he actually made, in case such prisoner then was attainted 
 or convicted of treason, or any felony, except petty larceny, Ck) or 
 lawfully committed to or detained in any gaol, for treason or any 
 felony, except petty larceny, expressed in the warrant of commitment 
 or detainer ; ' every person so offending shall, on conviction, be adjudged 
 guilty of felony, and be transported for seven years. {I) And, ' in 
 case such prisoner then was convicted or committed to or detained 
 in any gaol for petty larceny, (k) or any other crime, not being 
 treason or felony, expressed in the warrant of his or her commit- 
 ment or detainer as aforesaid, or then was in gaol upon any process 
 whatsoever, for any debt, damages, costs, sum or sums of money, 
 amounting in the whole to the sum of one hundred pounds ; ' every 
 person so offending, and being convicted, shall be deemed guilty 
 of ' a misdemeanor, and be liable to a fine and imprisonment.' 
 
 Sec. 2. ' If any person shall convey, or cause to be conveyed, 
 into any gaol or prison, any vizor, or other disguise, or any instru- 
 ment or arms proper to facilitate the escape of prisoners, and the 
 same shall deliver or cause to be delivered to any prisoner in any 
 such gaol, or to any other person there, for the use of any such 
 prisoner, without the consent or privity of the keeper or under- 
 keeper, of any such gaol or prison: every such person, although 
 no escape or attempt to escape be actually made, shall be deemed 
 to have delivered such vizor or other disguise, instrument or arms, 
 with an intent to aid and assist such prisoner to escape, or attempt 
 to escape ; and in case such prisoner then was attainted or con- 
 victed of treason, or any felony, except petty larceny, or lawfully 
 committed to or detained in any such gaol for treason, or any 
 felony, except petty larceny, expressed in the warrant of commit- 
 ment or detainer ; ' every person so offending, and being convicted, 
 shall, in like manner be deemed guilty of felony, and be trans- 
 ported for seven years. (I) And ' in case the prisoner to whom, 
 or for whose use such vizor or disguise, instrument or arms, shall 
 be so delivered, then was convicted, committed or detained for 
 petty larceny, (&) or any other crime not being treason or felony, 
 expressed in the warrant of commitment or detainer, or upon any 
 process whatsoever, for any debt, damages, costs, sum or sums of 
 money, amounting in the whole to the sum of one hundred pounds;' 
 every person so offending, and being convicted, shall be deemed 
 guilty of a misdemeanor, and be liable to a fine and imprisonment. 
 
 Sec. 3. ' If any person shall aid or assist any prisoner to attempt 
 to make his or her escape from the custody of any constable, 
 headborough, tithingman, or other officer or person who shall then 
 have the lawful charge of such prisoner, in order to carry him or 
 her to gaol, by virtue of a warrant of commitment for treason, 
 or any felony (except petty larceny), (A:) expressed in such war- 
 
 The 4 Geo. 4, c. 64, and 5 Geo. 4, c. 85, (/) Now penal servitude for not less than 
 
 are now repealed by 28 & 29 Vict. c. 126 ; three years ; see ante, p. 79. Principals in 
 
 see post, p. 912 ; but this does not revive the second degree are punishable like prin- 
 
 enactments repealed by the Acts of Geo. 4. cipals in the first degree ; and as to acces- 
 
 (Jc) Abolished ; see 24 & 25 Vict. c. 96, sories, see ante, p. 161, et scq. 
 s. 1. vol. II.
 
 910 Aiding Attempts to Escape. [book ii. 
 
 rant; or if any person shall be aiding or assisting to any felon to 
 attempt to make his escape from on board any boat, ship, or vessel, 
 carrying felons for transportation, or from the contractor for the 
 transportation of such felons, his assigns or agents, or any other 
 person to whom such felon shall have been lawfully delivered, in 
 order for transportation ; ' every person so offending, and being con- 
 victed, shall be deemed guilty of felony, and be transported for 
 seven years. (?i) 
 
 Sec. 4. The prosecution for these offences must be commenced 
 within a year. 
 
 The second section of this statute, relating to the conveying of 
 instruments, &c, into any prison, in order to facilitate the escape of 
 prisoners, makes the offender guilty, in cases where the prisoner is 
 committed to or detained in any gaol for treason or felony expressed 
 in the warrant of commitment, (o) This has been holden to mean 
 that the offence should be ' clearly and plainly expressed ; ' so that 
 a case where the commitment is on suspicion only is not within the 
 Act, for these are two kinds of commitments, which essentially 
 differ from each other ; as a prisoner may be admitted to bail on a 
 commitment for suspicion only, but not on a commitment for treason or 
 felony clearly and plainly expressed in the warrant, (p) And this 
 doctrine was recognized and acted upon in a subsequent case of an 
 indictment upon the third section of the statute, which relates to the 
 aiding a prisoner to escape from the custody of a constable having 
 charge of him by virtue of a warrant of commitment for felony 
 'expressed' in such warrant. The indictment stated that the com- 
 mitment was on on ' suspicion ' of burglary, and the warrant produced 
 in evidence at the trial corresponded with this statement : and the 
 judges were unanimously of opinion that a commitment on suspicion 
 was not within the statute, (q) 
 
 A majority of the judges decided that the Act does not extend 
 to cases where an actual escape is made, but must be confined to 
 cases of an attempt, without effecting the escape itself. They said, 
 ' The statute purports to be made for the further punishing of those 
 persons who shall aid and assist persons attempting to escape, and 
 makes the offence felony : it creates a new felony : but the offence 
 of assisting a felon in making an actual escape was felony before, 
 and therefore does not seem to fall within the view or intention of 
 the Legislature when they made this statute.' (r) 
 
 An indictment charging the defendant with aiding and assisting 
 a prisoner to attempt to make an escape, need not state that the 
 party aided did attempt to make the escape ; for he could not 
 have aided if no such attempt had been made, (r) The delivering 
 instruments to a prisoner, to facilitate his escape from prison, is 
 within this statute, though the prisoner have been pardoned for 
 the offence of which he was convicted, on condition of transporta- 
 tion, (s) And a party is within the Act, though there be no evidence 
 
 {n) Ante, p. 909, note (1). (q) R. v. Oreeniff, 1 Leach, 363 ; and K. 
 
 (o) Ante, p. 909. v. Gibbon, 1 Leach, 98, note (a), S. P. 
 
 (p) R. v. Walker, 1 Leach, 97; but see (>•) H. v. Tilley, 2 Leach, 662. See 28 
 
 the 11 & 12 Vict. c. 42, ss. 1, 23. & 29 Vict. c. 126, s. 37, post, p. 912. 
 
 (s) R. v. Shaw, R. & R. 526.
 
 chap, xxxvi.] Aiding Attempts to Escape. 911 
 
 that he knew of what specific offence the person he assisted had been 
 convicted, (t) 
 
 The record of the conviction of the prisoner, whose escape was 
 to have been effected, having been produced by the proper officer, 
 no evidence is admissible to contradict what it states ; or to show 
 that it had never been filed among the records of the county ; not- 
 withstanding the indictment refers to it with a prout patet as remain- 
 ing amongst those records, (u) 
 
 Where a count stated that the gaol thereinafter mentioned, situate 
 at the parish of the Holy Trinity, in Coventry, in the county of W., 
 was a gaol to which the provisions of the 4 Geo. 4, c, 64, (now re- 
 pealed) extended, and that one Thompson was a prisoner in the said 
 gaol, and that the defendant, at the parish aforesaid, feloniously did 
 aid and assist Thompson, then and there being such prisoner, in at- 
 tempting to escape from the said gaol ; it was held on error that the 
 count was good, though it did not allege the means by which the 
 defendant aided Thompson in attempting to escape, and though it 
 did not allege in direct terms that Thompson did attempt to escape, (v) 
 Another count stated that Thompson, being a prisoner in the said 
 gaol, so situate as aforesaid, was meditating and endeavouring to effect 
 his escape from the said gaol, otherwise than by due course of law, 
 and in order thereto had procured a key to be made with intent to 
 effect his escape by means thereof, and had made to the defendant, 
 then being a turnkey of the said gaol, overtures to induce him to aid 
 him to escape from the said gaol, and so was endeavouring to procure 
 his escape and to escape from the said gaol ; and that the defendant 
 whilst Thompson was such prisoner in the said gaol at the parisli 
 aforesaid, &c, feloniously did procure and receive into his possession 
 the said key, being adapted to and capable of opening divers locks 
 in the said gaol, with intent thereby to enable Thompson to escape 
 from the said gaol, and so the jurors said that the defendant at the 
 parish aforesaid feloniously did aid and assist Thompson in attempt- 
 ing to escape from the said gaol ; and it was held that the intro- 
 ductory part of the count stated an attempt to escape and the means 
 used with sufficient particularity, and sufficiently showed an offence 
 within the 4 Geo. 4, c. 64, and that the count was not bad for want 
 of a more particular venue to the acts charged in the introductory 
 part as an attempt by Thompson to escape, and that the count was 
 not double, (w) It was also held, that the general averment of the 
 gaol being a gaol to which the provisions of the 4 Geo. 4, c. 64, 
 applied was sufficient, without showing how it came within them, 
 and that it was not necessary to show more particularly that the 
 gaol was a gaol for the county within the 5 & 6 Vict. c. 110, s. 2. I | 
 It was further held, that aiding an escape is a substantive offence 
 under the repealed enactment 4 Geo. 4, c. 64, s. 43, and therefore 
 the count was not bad in charging the accessory without including 
 the principal or alleging that he had been convicted, and at all events 
 
 (t) R. v. Shaw, supra. An indictment (it) R. v. Shaw, supra. 
 
 at common law for aiding a prisoner's escape (v) Holloway v. R., 17 Q. B. 317. 2 
 
 should state that the party knew of his Den. C. C. 287. 
 offence. R. v. Young, Trin. T. 1801, MS. (w) Ibid. 
 
 Bayley, J. (x) Ibid.
 
 912 Aiding Attempts to Escape. [book ii. 
 
 such an objection was too late after the trial, (y) It was also held, 
 that it was not necessary to show that the prosecution was com- 
 menced within a year after the offence, as was required by the 1 6 
 Geo. 2, c. 31, s. 4. (z) 
 
 The 1 & 2 Vict. c. 82, established a prison for young offenders at 
 Parkhurst, in the Isle of Wight ; and sec. 13 provides for the punish- 
 ment of persons rescuing or aiding in the rescue of such offenders ; 
 and sec. 14 provides for the trial and evidence on the trial in such 
 cases. The 10 & 11 Vict. c. 62, s. 8. an Act for the establishment of 
 naval prisons, provides for the punishment of persons aiding the 
 escape of prisoners from those prisons. The 29 & 30 Vict. c. 109, 
 s. 82, also provides for the punishment of persons aiding prisoners to 
 escape from certain naval prisons. 
 
 The 5 Geo. 4, c. 84, which was passed for the purpose of revising 
 and consolidating the laws for regulating the transportation of 
 offenders from Great Britain, and which will be more particularly 
 noticed in the next chapter, by sec. 22, provides, that if any person 
 shall rescue or attempt to rescue, or assist in rescuing or attempting 
 to rescue, any offender sentenced or ordered to be transported or ban- 
 ished, from the custody of the superintendent or overseer, or of any 
 sheriff or gaoler, or other person, conveying, removing, &c, such 
 offender, or shall convey or cause to be conveyed any disguise, in- 
 strument for effecting escape, or arms, to such offender, every such 
 offence shall be punishable in the same manner as if such offender 
 had been confined in a gaol or prison in the custody of the sheriff 
 or gaoler, for the crime of which such offender shall have been 
 convicted, (a) 
 
 The two following sections relate to the indictment and the 
 evidence, and will be found in the next chapter. 
 
 By the 23 & 24 Vict. c. 75, s. 12, ' any person who rescues any 
 person ordered to be conveyed to any asylum for criminal lunatics 
 during the time of his conveyance thereto or of his confinement 
 therein, and any officer or servant in any asylum for criminal lunatics 
 who through wilful neglect or connivance permits any person con- 
 fined therein to escape therefrom, or secretes, or abets or connives at 
 the escape of any such person, shall be guilty of felony, and being 
 convicted thereof shall be liable to be kept in penal servitude for 
 any term not exceeding four years, (b) or to be imprisoned for any 
 term not exceeding two years, with or without hard labour, at the 
 discretion of the Court ; and any such officer or servant who care- 
 lessly allows any such person to escape as aforesaid shall, on sum- 
 mary conviction before two justices of such offence, forfeit any sum 
 not exceeding twenty pounds nor less than two pounds. 
 
 By the 28 & 29 Vict. c. 126 (entitled an Act to consolidate and 
 amend the law relating to prisons), s. 37, ' every person who aids any 
 prisoner in escaping or attempting to escape from any prison, or who, 
 
 (y) Holloway v. R., 17 Q. B. 317. 2 inferior Court to pronounce it, on the good 
 
 Den. C. C. 287. count. 
 
 (z) Ibid. It was also held that if one of (a) The provisions of this Act are now 
 
 several counts be good, the Court may, applicable to prisoners sentenced to penal 
 
 under the 11 & 12 Vict. c. 78, s. 5, pro- servitude, see post, p. 924. 
 nouuce the correct judgment, or direct the (b) And not less than three years ; see 
 
 ante, p. 79
 
 chap, xxxvi.] Aiding Attempts to Escape. 913 
 
 with intent to facilitate the escape of any prisoner, conveys or 
 causes to be conveyed into any prison any mask, dress, or other 
 disguise, or any letter, or any other article or thing, (c) shall be 
 guilty of felony, and on conviction be sentenced to imprisonment 
 with hard labour for a term not exceeding two years.' QP) 
 
 (c) A crowbar is an article or thing within 
 this section. R. v. Payne, 35 L. J. M. C. 
 170 ; L. P. 1 C. C. R, 27. 
 
 (d) This Act does not extend to Scotland 
 or Ireland, and does not apply to the prisons 
 for convicts under the superintendence of 
 the directors of convict prisons, or to any 
 military or naval prisoner (s. 3). ' Prison ' 
 
 shall mean gaol, house of correction, bride- 
 well, or penitentiary ; it shall also include 
 the airing grounds, or other grounds or 
 buildings occupied by prison officers, for the 
 use of the prison and contiguous thereto. 
 ' Gaoler ' shall mean governor, keeper, or 
 other chief officer of a prison (s. 4) . 
 
 vol. i. — 58
 
 CHAPTER THE THIRTY-SEVENTH. 
 
 OF RETURNING, OR BEING AT LARGE, AETER SENTENCE OF 
 TRANSPORTATION ; AND OF RESCUING OR AIDING THE ESCAPE 
 OF A PERSON UNDER SUCH SENTENCE. 
 
 As exile or transportation is a species of punishment unknown to 
 the common law of England, and inflicted only under the sanction of 
 enactments of the Legislature, offences committed by not submit- 
 ting to that punishment are principally dependent upon the provi- 
 sions of particular statutes, (a) But as a party convicted of felony 
 within benefit of clergy, and sentenced to be transported for seven 
 years, continues a felon, till actual transportation and service, pur- 
 suant to the sentence ; and as it is a felony at common law to assist 
 a felon to escape out of lawful custody ; it has been holden that, 
 independently of any statutable enactments, a person assisting such 
 felon convict, being in custody under sentence of transportation, to 
 escape out of prison, is an accessory to the felony after the fact, 
 provided it be such an assistance as in law amounts to a receiving, 
 harbouring, or comforting such felon, (b) 
 
 The 5 Geo. 4, c. 84, s. 1, recites, that the several laws in force for 
 regulating the transportation of offenders from Great Britain, would 
 expire at the end of the then present session of Parliament, and that 
 it was expedient that the laws relative to that subject should be 
 revised and consolidated into one Act. (c) 
 
 Sec. 2. ' By the unrepealed portion of this section (d) whenever 
 his Majesty shall be pleased to extend mercy to any offender con- 
 victed of any crime for which he or she is or shall be excluded from 
 the benefit of clergy, upon condition of transportation beyond the 
 seas, either for the term of life, or any number of years, and such 
 intention of mercy shall be signified by one of his Majesty's principal 
 secretaries of state to the Court before which such offender hath been 
 
 (a) In 6 Ev. Col. Stat. Part V. CI. xxv. subsisting which notices the power of trans- 
 
 (G.) pp. 852, 853, the learned editor says, portation was 22 Car. 2, c. 5. 
 that the earliest Act which imposed the (b) Pi. v. Burridge, 3 P. Wms. 439. 
 
 punishment of transportation was 39 Eliz. (c) By 36 & 37 Vict. c. 91, this Act is in 
 
 c. 4, which enacted that rogues, vagabonds, part repealed, namely : — 
 &c, might, by the justices in sessions, be Section One. 
 
 banished out of the realm, and conveyed at Section Two, to ' under the provisions of 
 
 the charges of the county to such parts be- this Act ; and ' 
 
 yond the seas as should be assigned by the Section Seventeen, Twenty-five, and 
 
 privy council, or otherwise adjudged per- Twenty-nine. 
 
 petually to the gallies of this realm ; and Also, so much of the Act as provides for 
 
 any rogue so banished, and returning again the appointment of the superintendent 
 
 into the realm, was to be guilty of felony, therein mentioned, or any overseer, or any 
 
 And he says that the earliest statute then assistant, or deputy to such superintendent. 
 
 (d) See note (c), supra.
 
 chap, xxxvu.] Being at Large after Sentence. 915 
 
 or shall be convicted, or any subsequent Court with the like auth- 
 ority, such Court shall allow to such offender the benefit of a con- 
 ditional pardon, and make an order for the immediate transportation 
 of such offender; and in case such intention of mercy shall be so 
 signified to the judge or justice before whom such offender hath been 
 or shall be convicted, or to any judge of his Majesty's Court of King's 
 Bench or Common Pleas, or to any baron of the Exchequer of the 
 degree of the coif in England, such judge, justice, or baron, shall 
 allow to such offender the benefit of a conditional pardon, and make 
 an order for the immediate transportation of such offender, in the 
 same manner as if such intention of mercy had been signified to the 
 Court during the term or session in or at which such offender was 
 convicted; and such allowance and order shall be considered as an 
 allowance and order made by the Court before which such offender 
 was convicted, and shall be entered on the records of the same Court 
 by the proper officer thereof, and shall be as effectual to all intents 
 and purposes, and have the same consequences, as if such allowance 
 and order had been made by the same Court during the continuance 
 thereof : and every such order, and also every order made by the 
 Court of Justiciary in Scotland for the transportation of any offender, 
 whose sentence of death shall be remitted by his Majesty, shall 
 subject the offender to be conveyed beyond the seas, under the 
 provisions of this Act.' 
 
 Sec. 3. ' It shall be lawful for his Majesty, by and with the advice 
 of his privy council, from time to time, to appoint any place or places 
 beyond the seas, either within or without his Majesty's dominions, 
 to which felons and other offenders under sentence or order of trans- 
 portation or banishment shall be conveyed; and that when any 
 offenders shall be about to be transported or banished from Great 
 Britain, one of his Majesty's principal secretaries of state shall give 
 orders for their removal to the ship to be employed for their trans- 
 portation, and shall authorize and empower some person to make a 
 contract for their effectual transportation to some of the places so 
 appointed, and shall direct security to be given for their effectual 
 transportation, in the manner hereinafter mentioned.' (e) 
 
 Sees. 4, 5, 7 provide for the delivery of offenders ordered to be 
 transported to the contractors by the sheriff or gaoler, and for the 
 giving of proper security by the contractors for their effectual trans- 
 portation (except when such offenders are transported in King's 
 ships). Sec. 6 gives authority to punish such offenders misbehaving 
 themselves upon the voyage ; and sec. 8 vests a property in their ser- 
 vices during the term of transportation in the governor of the colony, 
 &c., and his assignees. (/) 
 
 Sec. 10. 'It shall be lawful for his Majesty from time to time, by 
 warrant under his royal sign manual, to appoint places of confine- 
 ment within England or Wales, either at land, or on board vessels to 
 be provided by his Majesty in the river Thames, or some other river, 
 or within the limits of some port or harbour of England or Wales, for 
 the confinement of male offenders under sentence or order of trans- 
 
 (e) See the 11 Geo. 4 and 1 Will. 4, c. 39, (/) See 9 Geo. 4, c. 83, s. 9, as to assign- 
 
 as to the delivery of convicts at one place ment of convicts, 
 instead of another, &<.•.
 
 016 Return, Etc., after Sentence of Transportation, [book II. 
 
 portation, which shall be under the management of a superintendent 
 and overseer, to be appointed by his Majesty ; and that it shall be 
 lawful for one of his Majesty's principal secretaries of state to direct 
 the removal of any male offender who shall be under sentence of 
 death, but who shall be reprieved, or whose sentence shall be respited 
 during his Majesty's pleasure, or who shall be under sentence or 
 order of transportation, and who, having been examined by an expe- 
 rienced surgeon or apothecary, shall appear to be free from any 
 putrid or infectious distemper, and fit to be removed from the gaol or 
 prison in which such offender shall be confined, to any of the places 
 of confinement so appointed ; and every offender who shall be so 
 removed shall continue in the said place of confinement or be re- 
 moved to and confined in some other such place or places as aforesaid, 
 as one of his Majesty's principal secretaries of state shall from time 
 to time direct, until such offender shall be transported according to 
 law, or shall become entitled to his liberty, or until one of his 
 Majesty's principal secretaries of state shall direct the return of such 
 offender to the gaol or prison from which he shall have been removed ; 
 and the sheriff or gaoler having the custody of any offender whose 
 removal shall be ordered in manner aforesaid, shall with all con- 
 venient speed, after the receipt of any such order, convey or cause to 
 be conveyed every such offender to the place appointed, and there 
 deliver him to such superintendent or overseer, together with a true 
 copy, attested by such sheriff or gaoler, of the caption and order of 
 the Court by which such offender was sentenced or ordered for trans- 
 portation, containing the sentence or order of transportation of each 
 such offender, by virtue whereof he shall be in the custody of such 
 sheriff or gaoler; and also a certificate, specifying concisely the de- 
 scription of his crime, his age, whether married or unmarried, his 
 trade or profession, and an account of his behaviour in prison before 
 and after his trial, and the gaoler's observations on his temper and 
 disposition, and such information concerning his connexions and 
 former course of life as may have come to the gaoler's knowledge ; 
 and such superintendent or overseer shall give a receipt in writing to 
 the sheriff or gaoler for the discharge of such sheriff or gaoler.' (g) 
 
 Sees. 11, 12 authorized his Majesty to appoint a superintendent, an 
 assistant to the superintendent, and an overseer for such places of 
 confinement; specified the duties of the superintendent; and con- 
 tained regulations for the cleansing, purifying, and clothing, the 
 offenders brought to such places, (h) 
 
 ((f) By the 10 & 11 Vict. c. 67, s. 2, ' it cites the 5 Geo. 4, c. 84, 9 & 10 Vict. c. 26, 
 
 shall be lawful for her Majesty, by an order and 13 & 14 Vict. c. 39, and extends all the 
 
 in writing, to be notified in writing by one the powers and provisions of sec. 10 of the 
 
 of her Majesty's principal secretaries of 5 Geo. 4, c. 84, authorizing the appoint- 
 
 state, to direct that any persons under sen- ment of places of confinement of males to 
 
 tence or order of transportation within Great the like places of confinement for females 
 
 Britain shall be removed from the prisons in under sentence of transportation, and the 
 
 which they are severally confined to any other removal to or from and the confinement in 
 
 of her Majesty's prisons or penitentiaries in such places of females, and applies all the 
 
 Oreat Britain, there to be confined for such provisions of the recited Acts relating to the 
 
 time as her Majesty by any such order shall Government of places appointed under sec. 
 
 direct, not exceeding the time for which 10 to places appointed under this Act. 
 they might have been confined in the prisons (h) The 9 & 10 Vict. c. 26, s. 1, repeals 
 
 from which they shall have been severally so much of the 5 Geo. 4, c. 84, 'as gives the 
 
 removed.' The 16 & 17 Vict. c. 121, re- custody and management of any male offend-
 
 chap, xxxvn.] Return, Etc., (if (cr Sentence of Transportation. 917 
 
 Sec. 13. ' It shall be lawful for his Majesty, by any order or orders 
 in council, to declare his royal will and pleasure, that male offenders 
 convicted in Great Britain, and being under sentence or order of 
 transportation, shall be kept to labour in any part of his Majesty's 
 dominions out of England, to be named in such order or orders in 
 council ; and that whenever his Majesty's will and pleasure shall be 
 so declared in council, it shall be lawful for one of his Majesty's prin- 
 cipal secretaries of state to direct the removal and confinement of any 
 such male offender either at land or on board any vessel to be pro- 
 vided by his Majesty, within the limits of any port or harbour in 
 that part of his Majesty's dominions which shall be named in such 
 order in council, under the management of the said superintendent, 
 and of an overseer to be appointed by his Majesty for each such 
 vessel or other place of confinement; and that every offender who 
 shall be so removed shall continue on board the vessel or other place 
 of confinement to be so provided, or any similar vessel or other place 
 of confinement to be from time to time provided by his Majesty, until 
 his Majesty shall otherwise direct, or until the offender shall be en- 
 titled to his liberty.' (i) 
 
 Sec. 15. ' After the removal of any offender under this Act, the 
 superintendent and overseer who shall have the custody of him, 
 shall, during the term of such custody, have the same powers over 
 him as are incident to the office of a sheriff or gaoler, and shall in 
 like manner be answerable for any escape of such offender ; and if 
 any offender shall during such custody be guilty of any misbehaviour 
 or disorderly conduct, the superintendent or overseer shall be author- 
 ized to inflict or cause to be inflicted on him such moderate punish- 
 ment or correction as shall be allowed by one of his Majesty's 
 principal secretaries of state ; and such superintendent or overseer 
 shall also, during such custody, see every offender fed and clothed 
 according to a scale of diet and clothing to be fixed on and notified in 
 writing by one of his Majesty's principal secretaries of state to the 
 superintendent ; and shall keep such offender to labour at such places, 
 and under such regulations, directions, limitations, and restrictions, 
 as by such secretary of state shall from time to time be prescribed ; 
 and in case of the absence of any such superintendent or overseer, or 
 of the vacancy of his office, his duties or powers shall be discharged 
 and exercised in all respects by the officer or person on whom the 
 command of the place of confinement shall devolve.' 
 
 ers out of England to the superintendent of the punishment of escapes and rescues, 
 
 convicts confined in England under sen- and the trial of such offences abroad. C. S. 
 
 tence of transportation,' and provides that G. So much of the Act of 5 Geo. 4, c. 84, 
 
 his powers may he exercised by the governor as provides for the appointment of the super- 
 
 of the colony. The 22 & 23 Vict. c. 25, intendent therein mentioned, or any over- 
 
 s. 1, repeals such parts of the 5 Geo. 4, c. 84, seer, or any assistant, or deputy to such 
 
 ' as relate to the control and management of superintendent, is repealed by the 36 & 37 
 
 offenders sent to be kept to hard labour at Vict. c. 91, ante, p. 914, note (c). 
 places out of England duly appointed for (?') This clause is extended to male of- 
 
 the purpose,' and such parts of the 9 & 10 fenders sentenced in Ireland to be trans- 
 
 Vict. 26, 'as relate to the appointment of ported by the 10 & 11 Vict. c. 67, s. 1. See 
 
 superintendent, deputy superintendent, and the 6 Geo. 4, c. 69, s. 1, for the punishment 
 
 overseer respectively in places out of Eng- and trial of persons committing offences out 
 
 land;' and makes numerous provisions for of England whilst kept to hard labour 
 
 the government of convict prisons abroad, under this section.
 
 918 Return, Etc., after Sentence of Transportation, [book ii. 
 
 By sec. 16, the superintendent is also empowered to act as a justice 
 of the peace. 
 
 Sec. 18. It shall be lawful to keep to hard labour every offender 
 under sentence or order of transportation, while he or she shall 
 remain in the common gaol, if his or her health will permit ; and if 
 one or more of the visiting justices shall give a written order to that 
 effect; and that it shall be lawful for one of his Majesty's principal 
 secretaries of state, if he shall think fit, to order that any such offender 
 be removed from the common gaol to the house of correction, and there 
 kept to hard labour. By sec. 19, the time during which any offender 
 shall continue in any gaol or house of correction, or in any such place 
 of confinement as aforesaid, under sentence or order of transportation, 
 is to be reckoned in discharge or part discharge of the term of trans- 
 portation or banishment, (j) Sees. 20, 21, provide for the secure re- 
 moval of offenders through any county to the seaports or places of 
 confinement and for the payment of the expenses of removal by the 
 county in which the conviction took place. 
 
 Sec. 22. ' If any offender who shall have been or shall be so sen- 
 tenced or ordered to be transported or banished, or who shall have 
 agreed or shall agree to transport or banish himself or herself on 
 certain conditions, either for life or any number of years, under the 
 provisions of this or any former Act, shall be afterwards at large 
 within any part of his Majesty's dominions, without some lawful 
 cause, before the expiration of the term for which such offender 
 shall have been sentenced or ordered to be transported or banished, 
 or shall have so agreed to transport or banish himself or herself, 
 every such offender so being at large, being thereof lawfully con- 
 victed, shall suffer death, as in cases of felony, without the benefit 
 of clergy ;(jj) and such offender may be tried either in the county or 
 place where he or she shall be apprehended, or in that from whence 
 he or she was ordered to be transported or banished ; and if any 
 person shall rescue, or attempt to rescue, or assist in rescuing or 
 attempting to rescue, any such offender from the custody of such 
 superintendent or overseer, or of any sheriff or gaoler, or other person 
 conveying, removing, transporting, or reconveying him or her, or 
 shall convey, or cause to be conveyed, any disguise, instrument for 
 effecting escape, or arms, to such offender, every such offence shall 
 be punishable in the same manner as if such offender had been con- 
 fined in a gaol or prison, in the custody of the sheriff or gaoler, for the 
 crime of which such offender shall have been convicted ; and who- 
 ever shall discover and prosecute to conviction any such offender so 
 being at large within this kingdom, shall be entitled to a reward of 
 twenty pounds for every such offender so convicted.' (Jc) 
 
 The 4 & 5 Will. 4, c. 67, recites the preceding section, and enacts 
 that ' so much of the recited Act as inflicts the punishment of death 
 upon persons convicted of any offence therein and hereinbefore speci- 
 fied, shall be, and the same is hereby repealed ; and that from and 
 
 (j) Sees. 18 and 19 are repealed by 53 & (Jc) The judge, before whom a prisoner is 
 
 54 Vic. c. 33, and ss. 27 and 28 by 56 & 57 tried for returning from transportation, has 
 
 Vie. c. 61. power to order the county treasurer to pay 
 
 (jj) As to these enactmeuts applying the prosecutor the reward under the 5 Geo. 4, 
 
 where offenders have been sentenced to penal c. 84, s. 22. R. v. Emmons, 2 M. &Rob. 279, 
 
 servitude, see post, 922. Coleridge, J. R. v. Ambury, 6 Cox, C. C. 79.
 
 chap, xxxvu.] Return, Etc., after Sentence of Transportation. 919 
 
 after the passing of this Act, any person convicted of any offence 
 above specified in the said Act of 5 Geo. 4, c. 84, or of aiding or abet- 
 ting, counselling, or procuring the commission thereof, shall be liable 
 to be transported (/) beyond the seas for his or her natural life, and 
 previously to transportation shall be imprisoned with or without hard 
 labour, in any common gaol, house of correction, prison, or penitentiary, 
 for any term not exceeding four years.' (m) 
 
 Sec. 23 of the 5 Geo . 4, c. 84, ' In any indictment against any 
 offender for being found at large, contrary to the provisions of this 
 or of any other Act now made, or hereafter to be made ; and also in 
 any indictment against any person who shall rescue, or attempt to 
 rescue, or assist in rescuing, any such offender from such custody, or 
 who shall convey, or cause to be conveyed, any disguise, instrument 
 for effecting escape, or arms, to any such offender, contrary to the 
 provisions of this or of any other Act now made, or hereafter to be 
 made, whether such offender shall have been tried before any Court 
 or judge, within or without the United Kingdom, or before any naval 
 or military court-martial, it shall be sufficient to charge and allege 
 the order made for the transportation or banishment of such offender, 
 without charging or alleging any indictment, trial, conviction, judg- 
 ment, or sentence, or any pardon or intention of mercy, or signification 
 thereof, of or against, or in any manner relating to such offender.' 
 
 Sec. 24. ' The clerk of the Court or other officer having the custody 
 of the records of the Court where such sentence or order of transporta- 
 tion or banishment shall have been passed or made, shall, at the request 
 of any person on his Majesty's behalf, make out and give a certificate 
 in writing, signed by him, containing the effect and substance only (n) 
 (omitting the formal part) of every indictment and conviction of such 
 offender, and of the sentence or order for his or her transportation or 
 banishment (not taking for the same more than six shillings and 
 eightpence), which certificate shall be sufficient evidence of the con- 
 viction and sentence, or order for the transportation or banishment 
 of such offender ; and every such certificate, if made by the clerk or 
 officer of any Court in Great Britain, shall be received in evidence, 
 upon proof of the signature and official character of the person sign- 
 ing the same ; (o) and every such certificate, if made by the clerk or 
 officer of any Court out of Great Britain, shall be received in evidence, 
 if verified by the seal of the Court, or by the signature of the judge, or 
 one of the judges of the Court, without further proof.' 
 
 Where a certificate under the preceding section stated that the 
 prisoner had been convicted of two larcenies, and sentenced to two 
 several terms of transportation of seven years each for the said 
 larcenies, Patteson. J., held that it sufficiently complied with the 
 requisitions of the statute to be admissible in evidence in support 
 of an indictment against a prisoner for escaping from custody whilst 
 under sentence of transportation, (j?) Under this section, the Certi- 
 fy) Now penal servitude for not less than ment of accessories after the fact; see, 
 three years, see ante, p. 79. SeeR. v. Lamb, therefore, ante, p. 182. 
 
 3 C. & K. 96. (n) See R. v. Watson, post, p. 925. 
 
 (to) Neither the 5 Geo. 4, c. 64, nor the (o) See 8 & 9 Vict. c. 113, s. 1 y 14 & 15 
 
 4 & 5 Will. 4, c. 67, provides for the punish- Vict. c. 99, s. 13 ; Vol. III.. Evidence. 
 
 (p) R. v. Russell, 1 Cox, C. C. 81.
 
 920 Return, Etc., after Sentence of Transportation, [book ii. 
 
 ficate of conviction and sentence of transportation may be made out 
 and given by the deputy clerk of the peace, acting as such, and hav- 
 ing the custody of the records, (q) 
 
 The 1 & 2 Vict. c. 82, s. 3, which provides for the establishment 
 of a prison for juvenile offenders at Parkhurst, in the Isle of Wight, 
 enacts that any young offender under sentence of transportation or 
 of imprisonment may be removed to Parkhurst ; but that every 
 offender so removed, who shall be under sentence of transportation, 
 shall be within the provisions of the 5 Geo. 4, c. 84, if the secre- 
 tary of state afterwards orders him to be removed from Parkhurst ; 
 and by sec. 5, the secretary may order any offender to be removed 
 from Parkhurst as incorrigible, and in such case the offender is 
 liable to be transported or confined under his original sentence, and 
 is subject to all the consequences thereof in the same manner as if no 
 order had been made to send him to Parkhurst; and by sec. 12, 'if 
 any offender who shall be ordered to be confined in Parkhurst prison 
 shall at any time during the term of such confinement break prison, 
 or escape from the place of his or her confinement, or in his or her con- 
 veyance to such place of confinement, or from any lands belonging to 
 the prison, or from the person or persons having the lawful custody of 
 such offender, he or she so breaking prison or escaping shall be 
 punished, if under sentence of imprisonment, by an addition not 
 exceeding two years to the term for which he or she at the time of 
 his or her breach of prison or escape was subject to be confined, and 
 if under sentence of transportation, in such manner as persons under 
 sentence of transportation escaping from or breaking out of any other 
 prison or place of confinement are liable to be punished ; and if an 
 offender so punished by such addition to the term of confinement 
 shall afterwards be convicted of a second escape or breach of prison, 
 he or she shall be adjudged guilty of felony ; (r) and if any offender 
 who shall be ordered to be confined in the said prison shall, at any 
 time during the term of such confinement, attempt to break prison 
 or escape from the place of his or her confinement, or shall forcibly 
 break out of his or her cell, or shall make any breach therein with 
 intent to escape, he or she so offending being convicted thereof, shall be 
 punished by imprisonment for a term not exceeding twelve calendar 
 months, in addition to the punishment to which he or she at the time 
 of committing any such offence was subject.' (s) 
 
 The 5 & 6 Vict. c. 29, s. 14, an Act for establishing a prison at 
 Pentonville, authorizes the removal of male convicts under sentence 
 of transportation to Pentonville ; and by sec. 16, every such convict 
 is to continue there until transported, conditionally pardoned, en- 
 titled to his freedom, or until the secretary of state directs his 
 removal ; but every such convict is to be within the provisions of 
 
 (q) R. v. Parsons, 10 Cox, C. C. 243. and as to accessories after the fact, see ante, 
 
 See post, p. 925. p. 182. 
 
 (r) As no punishment is specially pro- (s) Sec. 13 makes every person rescuing 
 
 vided by this Act for this offence, it is or aiding in the rescue of such offenders 
 
 punishable under the 7 & 8 Geo. 4, c. 28, guilty of felony ; and sec. 14 makes offend- 
 
 ss. 8, 9 ; and 1 Vict. c. 90, s. 5, ante, p. 65 ; ers triable where they are apprehended, or 
 
 and so are the principals in the second degree where the escape, &c. was, and makes the 
 
 and accessories before the fact, ante, p. 180 ; order of commitment evidence, and provides 
 
 for the costs of the prosecution.
 
 chap, xxxvu.] Return, Etc., after Sentence of Transportation. 921 
 
 the 5 Geo. 4, c. 84, if the secretary directs his removal from Penton- 
 ville ; and by sec. 22, the secretary may order any convict to be 
 removed as incorrigible from Pentonville ; and in such case the 
 convict is liable to be transported under his original sentence, in the 
 same manner as if no order had been made to send him to Penton- 
 ville ; and by sec. 24, ' every convict who shall be ordered to be 
 imprisoned in the Pentonville prison, who at any time during the 
 term of such imprisonment shall break prison, or who, while being 
 conveyed to such prison, shall escape from the person or persons hav- 
 ing the lawful custody of such convict, shall be punished by an addi- 
 tion not exceeding three years to the term of his imprisonment, and 
 if afterwards convicted of a second escape or breach of prison shall be 
 adjudged guilty of felony ; (f) and every convict in the Pentonville 
 prison who at any time during the term of his imprisonment shall 
 attempt to break prison, or who shall forcibly break out of his cell, or 
 make any breach therein with intent to escape therefrom, shall be 
 punished by an addition not exceeding twelve calendar months to the 
 term of his imprisonment.' (u) 
 
 The 16 & 17 Vict. c. 99, an Act to substitute in certain cases other 
 punishment in lieu of transportation, introduced the punishment of 
 penal servitude ; and sees. 1, 2, 3, 4, provided for the cases in which 
 that punishment might be awarded ; but these sections are repealed 
 by the 20 & 21 Vict. c. 3, s. 1, and by sec. 2, the sentence of transpor- 
 tation is abolished and penal servitude substituted for it ; (v) and by 
 s. 1 of the 27 & 28 Vict. c. 47, this Act and the last two mentioned 
 Acts are to be read as one. 
 
 By the 16 & 17 Vict. c. 99, s. 5, ' Whenever her Majesty, or the 
 Lord Lieutenant, or other chief-governor or governors of Ireland for 
 the time being, shall be pleased to extend mercy to any offender con- 
 victed of any offence for which he may be liable to the punishment 
 of death, upon condition of his being kept to penal servitude for any 
 term of years or for life, such intention of mercy shall have the same 
 effect and may be signified in the same manner, and all Courts, jus- 
 tices, and others shall give effect thereto and to the condition of the 
 pardon in like manner, as in the cases where her Majesty or the Lord 
 Lieutenant or other chief governor or governors of Ireland for the 
 time, is or are now pleased to extend mercy upon condition of trans- 
 portation beyond seas ; the order for the execution of such punish- 
 ment as her Majesty, or the Lord Lieutenant, or other chief governor 
 or governors of Ireland for the time being, may have made the con- 
 dition of her, his, or their mercy being substituted for the order for 
 transportation.' 
 
 Sec. 6. ' Every person who under this Act shall be sentenced or 
 ordered to be kept in penal servitude may, during the term of the 
 sentence or order, be confined in any such prison or place of confine- 
 ment in any part of the United Kingdom, or in any river, port, or 
 harbour of the United Kingdom, in which persons under sentence or 
 order of transportation may now by law be confined, or in any other 
 
 (t) See note (r), p. 920. at the Central Criminal Court, or where they 
 
 (u) Sec. 25 provides for the punishment are taken, and makes a copy of the order of 
 
 of persons rescuing or aiding the rescue of commitment evidence. 
 
 convicts; and sec. 28 makes offenders triable (v) See sec. 2, ante, p. 71.
 
 922 Return, Etc., after Sentence of Transportation, [book ii. 
 
 prison in the United Kingdom, or in any part of her Majesty's 
 dominions beyond the seas, or in any port or harbour thereof, as one 
 of her Majesty's principal secretaries of state may from time to time 
 direct ; and such person may during such term be kept to hard labour 
 and otherwise dealt with in all respects as persons sentenced to trans- 
 portation may now by law be dealt with while so confined.' 
 
 Sec. 7. 'All Acts and provisions of Acts now applicable with 
 respect to persons under sentence or order of transportation shall, so 
 far as may be consistent with the express provisions of this Act, be 
 construed to extend and be applicable to persons under any sentence 
 or order of penal servitude under this Act; and all the powers and 
 provisions contained in the Act of the 5 Geo. 4, c. 84, authorising the 
 appointment by her Majesty from time to time of places of confine- 
 ment as therein mentioned for male offenders under sentence or order 
 of transportation, and authorising her Majesty to order male offenders 
 convicted in Great Britain and under sentence or order of transporta- 
 tion to be kept to hard labour in any part of her Majesty's dominions 
 out of England, shall extend and be applicable to and for the appoint- 
 ment by her Majesty of like places of confinement in any part of the 
 United Kingdom for offenders (whether male or female) sentenced 
 under this Act in any part of the United Kingdom, and to and for 
 the ordering of such offenders to be kept to hard labour in any part 
 of her Majesty's dominions out of England ; and all the provisions of 
 the said Act concerning the removal to or from and confinement in 
 the places of confinement in or out of England, appointed under the 
 said Act, of the offenders therein-mentioned, and all Acts and provi- 
 sions of Acts now in force concerning or relating to the regulation 
 and government of such places of confinement, and the custody, treat- 
 ment, management, and control of or otherwise in relation to the 
 offenders confined therein, shall, so far as the same may be consistent 
 with the express provisions of the Act, extend and be applicable to 
 and for the removal to and from and confinement in the places of 
 confinement appointed under this Act of the offenders sentenced in 
 any part of the United Kingdom, and otherwise be applicable to and 
 in respect of such places of confinement and the offenders to be con- 
 fined therein.' (w) 
 
 Sec. 9. ' It shall be lawful for her Majesty, by an order in writing 
 under the hand and seal of one of her Majesty's principal secretaries 
 of state, to grant to any convict now under sentence of transporta- 
 tion, or who may hereafter be sentenced to transportation, or to any 
 punishment substituted for transportation by this Act, a licence to be 
 at large in the United Kingdom and the Channel Islands, or in such 
 part thereof respectively as in such licence shall be expressed, during 
 such portion of his or her term of transportation or imprisonment, 
 and upon such conditions in all respects as to her Majesty shall seem 
 fit ; and it shall be lawful for her Majesty to revoke or alter such 
 licence by a like order at her Majesty's pleasure.' 
 
 Sec. 10. ' So long as such licence shall continue in force and unre- 
 voked, such convict shall not be liable to be imprisoned or trans- 
 
 (w) Sec. 8. All powers of a secretary of state are in Ireland to be exercised by the 
 Lord Lieutenant.
 
 chap, xxxvu.] Return, Etc., after Sentence of Transportation. 923 
 
 ported by reason of his or her sentence, hut shall be allowed to go 
 and remain at large according to the term of such licence.' (.< ■) 
 
 Sec. 11. 'If it shall please her Majesty to revoke any such licence, 
 a secretary of state by warrant under his hand, may signify to any 
 police magistrate of the metropolis that such licence has been 
 revoked, and may require such magistrate to issue his warrant for 
 the apprehension of the convict, and the magistrate shall issue his 
 warrant accordingly, and the warrant shall be executed by the con- 
 stable to whom it shall be delivered for that purpose in any part of 
 the United Kingdom, or in Jersey, Guernsey, Alderney, or Sark, and 
 the convict when apprehended shall be brought before the magistrate 
 who issued the warrant, or some other magistrate of the same Court ; 
 and he shall thereupon make out his warrant for the recommitment 
 of the convict [to the prison from which he was released, (a)~\ and 
 such convict shall be recommitted accordingly ' and shall thereupon 
 be remitted to his or her original sentence, and shall undergo the 
 residue thereof as if no such licence had been granted.' 
 
 The 20 & 21 Vict. c. 3, s. 3, reciting that the provisions applicable 
 to persons under sentence of transportation extend to persons under 
 penal servitude only when they are conveyed to and kept in places 
 of confinement appointed under the 5 Geo. 4, c. 84, and that it is 
 expedient to extend the provisions, enacts that ' any person now or 
 hereafter under sentence or order of penal servitude may, during the 
 term of the sentence or order, be conveyed to any place or places 
 beyond the seas to which offenders under sentence or order of trans- 
 portation may be conveyed, or to any place or places beyond the seas 
 which may be hereafter appointed as herein mentioned ; and all Acts 
 and provisions now applicable to and for the removal and transporta- 
 tion of offenders under sentence or order of transportation to and 
 from any places beyond the seas, and concerning their custody, man- 
 agement, and control, and the property in their services, and the 
 punishment of such offenders if at large without lawful cause before 
 the expiration of their sentence, and all other provisions now appli- 
 cable to and in the case of persons under sentence or order of trans- 
 portation, shall apply to and in the case of persons under sentence or 
 order of penal servitude, as if they were persons under sentence or 
 order of transportation.' 
 
 Sec. 4. ' The provisions and powers of the said Act of the fifth year 
 of King George the Fourth, authorizing the appointment (by her 
 Majesty, with the advice of her privy council), of any place or 
 places beyond the seas to which felons and other offenders under 
 sentence or order of transportation shall be conveyed, and all other 
 powers of her Majesty, or the Lord Lieutenant, or chief governor or 
 governors of Ireland, for the like purpose, shall extend and be appli- 
 cable to and for the appointment of any place or places beyond the 
 seas to which offenders under sentence or order of penal servitude 
 may be conveyed, as herein provided.' 
 
 Sec. 5, reciting sec. 11 of the 16 & 17 Vict. c. 99, enacts that 'any 
 such convict may be recommitted by the magistrate issuing his 
 
 (x) Sec. 15. For the purposes of the Act (a) The part within brackets is repealed 
 
 the term ' transportation ' includes banish- by 37 & 38 Vict. c. 66. 
 ment beyond the seas.
 
 924 Return, Etc., after Sentence of Transportation, [book ii. 
 
 warrant in that behalf, either to the prison from which he was 
 released by virtue of his licence, or to any other prison in which 
 convicts under sentence, of penal servitude may be lawfully confined.' 
 
 Sec. 6. ' Where in any enactment now in force the expression 
 " any crime punishable with transportation," or " any crime punish- 
 able by law with transportation," or any expression of the like 
 import, is used, the enactment shall be construed and take effect as 
 applicable also to any crime punishable with penal servitude.' (b) 
 
 The Army Act 1881 (c) which is continued by the annual mutiny 
 Acts, regulates the discipline and punishment of persons subject to 
 military law, and by s. 58, when a person subject to military law is con- 
 victed by court martial and sentenced to penal servitude, such convic- 
 tion and sentence shall have the same effect as if such person had been 
 convicted in the United Kingdom of an offence punishable by penal 
 servitude and sentenced to penal servitude by a competent civil court, 
 and ' all enactments relating to a person sentenced to penal servitude 
 by a competent civil court shall so far as circumstances admit apply 
 accordingly.' By the Naval Discipline Act 1884 (oT) s. 3, a similar 
 provision is enacted with regard to persons subject to naval dis- 
 cipline. 
 
 It may be useful to mention some of the points decided upon the 
 statutes which formerly related to the offences treated of in this 
 chapter. 
 
 Where an indictment alleged that the prisoner ' was at large with- 
 out any lawful excuse within her Majesty's dominions, before the 
 expiration of the time ' for which he had been transported ; Patteson, 
 J., held the indictment bad for omitting the word ' feloniously ; ' for 
 the statute, by enacting that the offender ' shall suffer death as in 
 cases of felony,' clearly made the offence felony, (e) 
 
 Where a capital convict had a conditional pardon and escaped, 
 and the indictment against him stated that the King's pleasure was 
 notified to the Court, and the Court thereupon ordered, &c, according 
 to the terms of the pardon, and the notification was to the judge after 
 the assizes were over, and he made the order ; the judges were unani- 
 mous that the notification to the judge, and the order by him, was 
 not a notification to the Court, or any order by the Court, and that 
 the indictment was not proved. (/*) But the 5 Geo. 4, c. 84, enacts 
 that it shall be sufficient to allege in the indictment the order for 
 transportation, without alleging any indictment, trial, &c, or any 
 pardon or intention of mercy, or signification thereof, (g) The stat- 
 ute, however, requires that the certificate to be given in evidence shall 
 contain the effect and substance of the indictment and conviction ; and 
 in a case which arose upon the 6 Geo. 1, c. 23 (now repealed), which 
 required that the certificate should contain the effect and tenor of the 
 indictment and conviction, and of the order and contract for trans- 
 portation, and also upon the 24 Geo. 3, c. 56, s. 5 (now repealed), 
 which required a certificate containing the effect and substance only, 
 
 (b) See the enactments as to penal servi- (f) R. v. Treadwell, Mich. Term, 1781, 
 tude, ante, p. 73 et seq. MS. Bayley, J. 
 
 (c) 44 & 4r> Viet. c. 58. (g) Sec. 23, ante, p. 919 ; and see also 
 
 (d) 47 & 48 Vict. c. 39. ante, p. 914. 
 (c) R. v. Home, 4 Cox, C. C. 263.
 
 chap, xxxvii.] Return, Etc., after Sentence of Transportation. 925 
 
 omitting the formal part of the indictment and conviction, the indict- 
 ment stated that the prisoner was convicted of grand larceny within 
 benefit of clergy, and the certificate was in the same form ; and the 
 judges, upon the point being reserved, held that both were insuffi- 
 cient, (h) So also in another case, upon the 56 Geo. 3, c. 27, s. 8, 
 which required the certificate to contain the effect and substance only 
 (omitting the formal part) of the indictment and conviction, and order 
 for transportation, it was held that an indictment which stated that 
 the prisoner had been convicted of felony, without stating the nature 
 of that felony, and a certificate which stated only that the prisoner 
 had been convicted of felony, were insufficient; and the prisoner was 
 remitted to his former sentence. (?') But where on an indictment 
 for returning from transportation, the certificate put in alleged that 
 the prisoner had been convicted of two larcenies, and sentenced to 
 two several terms of transportation for seven years each for the said 
 larcenies ; Patteson, J., held that the certificate was sufficient, (j) 
 So where on a similar indictment the certificate put in alleged that 
 the prisoner was ' in due form of law convicted of feloniously and 
 burglariously breaking and entering the dwelling-house of T. D., and 
 feloniously and burglariously stealing therein one piece of the current 
 gold coin,' &c, and 'was thereupon ordered to be transported beyond 
 the seas for the term of his natural life ;' Williams, J., held that the 
 certificate sufficiently stated the sentence of transportation, (ft) So 
 where on a similar indictment the certificate put in stated that ' at 
 the general quarter sessions of the peace of our Lady the Queen,' 
 holden at M. in the county of K., the prisoner was in due form of 
 law tried and convicted ; Patteson, J., held that the certificate suffi- 
 ciently described the Court by which the prisoner had been tried. (I) 
 The prisoner was indicted under the 5 Geo. 4, c. 84, s. 22, for being 
 at large before the expiration of the term for which he was trans- 
 ported. A certificate of the clerk of the peace was put in to prove 
 the conviction and sentence, and it appeared therefrom that the 
 prisoner had been convicted of larceny at the sessions, and sentenced 
 to be transported for fourteen years. It was objected that the ses- 
 sions had no jurisdiction to pass that sentence for simple larceny, and 
 therefore that the judgment was a nullity : but it was held that the 
 judgment was valid until it was reversed, and that was enough, (in) 
 
 Where an indictment stated the condition upon which the royal 
 mercy was extended to the prisoner to have been his being trans- 
 ported for life to some parts beyond the seas, and it appeared in 
 evidence that the condition was that he should be transported to 
 New South Wales or some of the islands adjacent, the variance was 
 held to be fatal, (n) 
 
 The prisoner was indicted under the 5 Geo. 4, c. 84, s. 22, for being 
 at large before the expiration of the term for which he had been 
 transported. A certificate of the previous conviction and sentence 
 was produced, in the following form : ' I, John Gorst, deputy clerk 
 
 (h) R. v. Sutcliffe, MS. Bayley, J. R. & (Z) R. v. Home, 4 Cox, C. C. 263. 
 
 R. 469, 914. ( m ) R. v. Finney, 2 C. & K. 774, Alder- 
 
 (i) R. v. Watson, R. & R. 468. son, B., who consulted several of the judges. 
 
 0) R. v. Russell, 1 Cox, C. C. 81. (n) R. v. Fitzpatrick, R. & R. 512. 
 (k) R. v. Ambury, 6 Cox, C. C. 79.
 
 926 Return, Etc., after Sentence of Transportation, [book ii. 
 
 of the peace for the county palatine of Lancaster, and clerk of the 
 Courts of general quarter sessions of the peace, holden in and for the 
 said county, and having the custody of the records of general quarter 
 sessions of the peace holden in and for the said county, do hereby 
 certify that at the general quarter sessions of the peace, holden at Sal- 
 ford, in the said county,' &c. This document was signed by J. Gorst, 
 who acted as clerk of the peace for the said county. E. J. Harpur 
 was the clerk of the peace for the county, but he never discharged 
 the duties of the office but by deputy, and he had three deputies, 
 E. Gorst, J. Gorst, and T. Burchall, who were attorneys and partners. 
 .Sometimes one and sometimes another of them attended the sessions 
 and acted as clerk of the peace : at some sessions both E. and J. Gorst 
 attended ; there was no clerk of the Court of sessions except the clerk 
 of the peace. The sessions records for forty years past had been kept 
 at the office of the three, at Preston. It was submitted that the cer- 
 tificate did not conform to the provisions of the statute, as Harpur 
 was the clerk of the Court, and had the legal custody of the records, 
 and this certificate was only by his deputy ; but Coltman, J., over- 
 ruled the objection, (o) 
 
 Where the prisoner had received a pardon on condition of trans- 
 porting himself beyond the seas, within fourteen days from the day of 
 his discharge, and it was incumbent on the prosecutor to prove the 
 precise day on which the prisoner was discharged, it was holden that 
 tlif daily book of the prison, containing entries of the names of the 
 criminals brought to the prison, and the times when they were dis- 
 charged, though generally made from the information of the turnkeys, 
 or from their endorsements on the backs of the warrants, was good 
 evidence to prove the time of the prisoner's discharge, (p) And it 
 was held that though, if a convict on his trial for returning from 
 transportation before his time w T as expired, should confess the fact, 
 and acknowledge that he is the man, the Court would record such 
 confession ; yet, no such confession being made, it was necessary to 
 produce the record of conviction, and give evidence of the prisoner's 
 identity, (q) 
 
 Where a convict was sentenced to transportation for seven years, 
 and received a sign manual, promising him a pardon, ' on condition 
 of his giving a security to transport himself for that period within 
 fourteen days,' and upon his giving such security was discharged from 
 prison, but neglected to transport himself within the fourteen days : 
 it was holden that he could not be indicted for being unlawfully 
 found at large before the term for which he had received sentence 
 of transportation had expired, on the ground that such sign manual, 
 and the recognizance entered into in consequence of it, were good 
 evidence that he was lawfully, at large ; although he had not sub- 
 stantially performed the condition on which the promise of pardon 
 was granted, (r) 
 
 (o) R. v. Jones, 2 C. & K. 524. See ante, (r) Miller's case, 1 Hawk. P. C. c. 47, 
 
 p. 919. tit. Return from Transportation, s. 22, Cas. 
 
 (p) Aickle's case, 1 Leach, 391, 339. C. L. 69. i Leach, 74. 2 Black. R. 797. 
 
 (q) 1 Hawk. P. C. c. 47, tit. Return from It appears that the judges considered that 
 
 Transportation, s. 21. The 5 Geo. 4, c. 84, the sign manual was improperly worded by 
 
 s. 24, makes a certificate of the conviction, mistake of the officer : that it should have 
 
 &c, sufficient evidence. Ante, p. 919. been 'upon condition of the said Miller
 
 chap, xxxvu.] Return, Etc., after Sentence of Transportation. 927 
 
 In the last case, the prisoner was referred to his original sentence 
 of transportation, as not having performed the condition upon which 
 his pardon was to be granted ; that is, he was pardoned on condition 
 of transporting himself within fourteen days, (s) And in another 
 case it was holden, that a prisoner convicted of a capital crime, whose 
 sentence was respited during the King's pleasure, and who, having 
 received a pardon on condition of transportation for life, was after- 
 wards found at large in Great Britain without lawful cause, should 
 be referred to his original sentence. (£) In a subsecpuent case, where 
 the prisoner, having been convicted of simple grand larceny, had re- 
 ceived judgment of transportation to America for seven years, but 
 had afterwards been pardoned, ' on condition of transporting himself 
 beyond the seas for the same term of years, within fourteen days from 
 the day of his discharge, and of giving security so to do,' and, upon 
 giving the security required, had been discharged, but had not com- 
 plied with the other part of the condition, by transporting himself, it 
 was doubted whether he could be convicted of a capital felony in 
 being found at large, without any lawful cause, before the expiration 
 of the term, or whether he ought to be remitted to his former sen- 
 tence. The former cases were cited as authorities that the prisoner's 
 discharge was a lawful cause for his being at large, notwithstanding 
 he had forfeited the recognizance of himself and his bail, by breaking 
 the other part of the condition, in not transporting himself within 
 the fourteen days ; but one of the judges thought that, as the prisoner 
 had not complied with the terms on which he was pardoned, he must 
 be considered as having been at large without lawful authority, as 
 soon as the fourteen days had expired. Another judge considered it 
 as a doubtful question whether the non-performance of the condition 
 had not rendered the whole pardon null and void ; and he also 
 
 transporting himself, &c, and of his giving quitted. But in the report in Leach, it is 
 security to the satisfaction,' &c, and not said that no indictment was ever preferred 
 merely ' upon condition of his giving against the prisoner for the new felony ; but 
 security,' &c, and that though the King that, being in custody, a notice was served 
 might revoke his intended grace on account upon him to show cause why execution 
 of this apparent fraud, yet, as he had not in should not be awarded against him on his 
 fact revoked it, and as the prisoner had liter- former sentence: that after this notice he 
 ally complied with the condition, he ought was put to the bar, and his identity and the 
 not to have been convicted upon an indict- record of his former conviction proved ; and 
 ment for being found at large, vrithout any he not being prepared to prove the truth ot 
 lawful excuse, before the expiration of his certain facts alleged in his defence, the Court 
 term. With respect, however, to a condition gave their opinion that, as he had broken 
 being considered precedent or subsequent, it the condition of the pardon, he remained in 
 has been holden that no precise technical the same state in which he was at the time 
 words are requisite for that purpose ; that it the pardon was granted, namely, under sen- 
 does not depend upon its being prior or pos- tence of death, with a respite of that sentence 
 terior in the deed, but that it depends upon during his Majesty's pleasure. The report 
 the nature of the contract, and the acts to further states that afterwards it was sub- 
 be performed by the parties. Robinson v. mitted to the judges, whether the prisoner 
 Comyns, Cas. temp. Talb. 166. Hotham v. would not have been liable to suffer death 
 The East India Co., 1 T. R. 645. without benefit of clergy, if he had been in- 
 (s) Miller's case, 1 Leach, 76. dieted and convicted under the 8 Geo. 3, 
 (/) Madan's case, Old Bailey, 1780. 1 c. 15, or whether he had been properly re- 
 Leach, 223. In 1 Hawk. P. C. c. 47, tit. ferred to his original sentence. No opinion 
 Return from Transportation, s. 23 (referring of the judges is stated ; but it appears that 
 to Cas. C. L. 197), this case is cited as having at the Old Bailey, April Sess. 17S2, the 
 decided that the prisoner was so referred back prisoner was informed by the Court that it 
 to his original sentence, on his being indicted was his Majesty's pleasure that he should be 
 for returning from transportation, and ac- transported to Africa for life.
 
 928 Return, Etc., after Sentence of Transjjortation. [book ii. 
 
 thought that the offence with which the prisoner was charged was 
 not within the 16 Geo. 2, c. 15, because he had not agreed to trans- 
 port himself to America; and that it was not within the 19 Geo. 3, 
 c. 74, because that Act related only to pardons granted to offenders 
 who had been convicted of felonies by which they were excluded 
 from clergy, (u) 
 
 In this last case, one point was agreed upon, namely, that as the 
 prisoner had, at the time of his discharge, a real intention to quit the 
 kingdom within the time, but had been prevented from carrying it 
 into execution by the distress of poverty and ill-health, these impedi- 
 ments amounted to a lawful cause. (V) 
 
 (u) Aickle's case, Old Bailey, 1785, cor. But he thought that when the condition of 
 
 Gould, J., Hothara, B., and Adair, Re- the King's pardon was broken, the pardon 
 
 corder. The Recorder thought that the was gone. There being, however, a differ- 
 
 indictment was perfectly supported under the ence of opinion, it was intended to have 
 
 clause of the 16 Geo. 2, c. 15, adopted by 19 submitted the case to the opinion of the 
 
 Geo. 3, c. 74, which made it a capital felony twelve judges, if the prisoner had been found 
 
 to be found at large in Great Britain within guilty. 
 
 the term for which a convict, who was liable (v) Aickle's case, 1 Leach, 396 ; and see 
 
 to be transported to America, had received Thorpe's case, id. ibid, note (a). 
 sentence to be transported beyond the seas.
 
 CHAPTER THE THIRTY-EIGHTH. 
 
 OF GAMING. 
 
 It seems that by the common law, the playing at cards, dice, &c, 
 when practised innocently and as a recreation, the better to fit a per- 
 son for business, is not at all unlawful, nor punishable as any sort of 
 offence ; but a person guilty of cheating, as by playing with false 
 cards, dice, &c, may be indicted for it at common law, and fined and 
 imprisoned according to the circumstances of the case and heinous- 
 ness of the offence, (a) We have seen that common gaming-houses 
 are considered as nuisances in the eye of the law; (b) and that lotter- 
 ies have been declared to be public nuisances, except as they may 
 have been authorized by Parliament, (c) and that betting or gaming in 
 a public place is forbidden. (Y£) 
 
 The 5 & 6 Will. 4, c. 41, s. 1, repealed so much of the 16 Car. 2, 
 c. 7, 10 Will. 3 (I.), 9 Anne, c. 14, 11 Anne (I.), 12 Anne, stat. 2, 
 c. 16, 5 Geo. 2 (I.), 11 & 12 Geo. 3 (I.), 45 Geo. 3, c. 72, and 6 Geo. 4, 
 c. 16, as enacted that 'any note, bill, or mortgage shall be absolutely 
 void.' 0) The 8 & 9 Vict. c. 109, s. 15, repeals 'so much of the 16 
 Car. 2, c. 7, 10 Will. 3 (I.), 9 Anne, c. 14, and 11 Anne (I.), 'as was 
 not altered by the 5 & 6 Will. 4, c. 41.' It seems, therefore, that, as 
 far as the subject of this chapter is concerned, the whole of these 
 four last-mentioned Acts are repealed. The 8 & 9 Vict. c. 109, s. 15, 
 also repeals ' so much of ' the 18 Geo. 2, c. 34, ' as relates to ' the 
 9 Anne, c. 14, ' or as renders any person liable to be indicted and 
 punished for winning or losing, at play or by betting, at any one 
 time, the sum or value of ten pounds, or within the space of twenty- 
 four hours the sum or value of twenty pounds.' This seems to repeal 
 sees. 3 and 8 of the 18 Geo. 3, c. 34. The 8 & 9 Vict. c. 109, s. 1, 
 also repeals parts of the 33 Hen. 8, c. 9. 
 
 To constitute unlawful gaming it is not necessary that the games 
 played shall be unlawful games, it is enough that the playing takes 
 place in a common gaming-house. 
 
 There appear to be two classes of unlawful games within the 
 meaning of the statutes. First, those which are absolutely forbidden 
 by name ; and second, those which are not declared to be altogether 
 illegal, but which have been styled unlawful by the legislature be- 
 cause the keeping of houses for playing them and the playing them 
 therein was made illegal. 
 
 ' The unlawful games now are ace of hearts, pharaoh, basset, 
 hazard, passage, roulette, every game of dice except backgammon, and 
 
 (a) Bac. Abr. tit. Gaming (A.), 2 Roll. (c) Ante, p. 754. 
 Abr.78. (d) Ante, p. 754. 
 
 (b) Ante, pp. 741, 745. As to 'resort- (e) The clause recites the 58 Geo. 3, c. 93, 
 ing ' to betting houses. See R. v. Brown also, but it is omitted in the repeal. 
 
 1895), 1 Q. B. 119. 
 vol. i. — 59
 
 930 Of Gaming, [book ii. 
 
 every game of cards which is not a game of mere skill, and any other 
 game of mere chance.' (/) Baccarat has been held to be within this 
 category, (j/) 
 
 Excessive gaming is not in itself a legal offence, but the fact that it 
 is habitually carried on in a gaming-house is strong evidence that the 
 house is a common gaming-house so as to make the keeper of it liable 
 to be indicted for a nuisance. (//) 
 
 By the 8 & 9 Vict. c. 109, s. 17, ' every person who shall, by any 
 fraud or unlawful device or ill practice in playing at or with cards, 
 dice, tables, or other game, or in bearing a part in the stakes, wagers, 
 or adventures, or in betting on the sides or hands of them that do 
 play, or in wagering on the event of any game, sport, pastime, or 
 exercise, win from any other person to himself, or any other or others. 
 any sum of money or valuable thing, shall be deemed guilty of obtain- 
 ing such money or valuable thing from such other person by a false 
 pretence, with intent to cheat or defraud such person of the same, 
 and, being convicted thereof, shall be punished accordingly.' 
 
 This section comprises several distinct branches : — 
 
 I. Any fraud or unlawful device or ill-practice in playing at or 
 with cards, dice, tables, or other games ; and under this clause the 
 offence consists in the fraud, unlawful device, or ill-practice, and 
 it seems perfectly immaterial whether the game be or be not 
 lawful. 
 
 II. Any fraud or unlawful device or ill-practice in bearing a 
 part in the stakes, wagers, or adventures on the sides or hands of 
 them that do play ; and here, too, the offence consists in the fraud, 
 and not in the nature of the game. 
 
 III. Any fraud or unlawful device or ill-practice in betting on 
 the sides or hands of them that do play ; and here, also, the same 
 remark applies. 
 
 IV. Any fraud or unlawful device or ill-practice in wagering 
 on the event of any game, sport, pastime, or exercise; and here, 
 also, the same remark applies. On the whole, therefore, the gist 
 of every offence created by this section appears to be the fraud, 
 unlawful device, or ill-practice ; and therefore it seems unnecessary 
 to cite the numerous civil cases decided on the following section. 
 
 Tossing with coins for wagers is a pastime within the meaning of 
 the section, (i) 
 
 An indictment alleged that the prisoner by fraud, unlawful device, 
 and ill-practice in playing at and with cards, unlawfully did win 
 from one H. F. Bernard to a certain person unknown a certain sum 
 of money, with intent to cheat the said H. F. Bernard of the same, 
 and it was moved, in arrest of judgment, that the indictment was 
 bad for not alleging the ownership of the money won ; but upon a 
 case reserved, it was held that the indictment was sufficient, as it 
 described the offence in the words of the statute, (j) 
 
 In the preceding case some of the judges intimated an opinion that 
 
 (/) Per Hawkins, J., Jenks v. Turpin, (k) Jenks v. Turpin, 13 Q. B. D. 505. 
 
 infra. Games of skill played for money See ante, p. 747. 
 
 would appear to be 'gaming.' See Dyson (?) R. v. O'Connor, 15 Cox, C. C. 3. 
 
 ;•. Mason, 22 Q. B. D. 351. (/) R. v. Moss, D. & B. C. C. 104, 26 L. 
 
 (g) Jenks v. Turpin, infra. J. M. C. 9.
 
 chap, xxxviii.] Of Gaming. 931 
 
 the offence might be committed, although no money were actually 
 paid; as the word 'win' might be construed in the sense of obtain- 
 ing a title to a sum of money by becoming the winner of a stake ; 
 but such a construction is plainly inconsistent with the latter part 
 of the clause, for how can a person, who merely obtains a title to a 
 thing, ' be deemed guilty of obtaining such money or valuable thing 
 from such other person ' ? If, however, a case were to occur where 
 every other ingredient of the offence were proved except the pay- 
 ment of the money, the party might be convicted of an attempt 
 to commit the offence under the 14 & 15 Vict. c. 100, s. 9. 
 
 Where on an indictment under the 8 & 9 Vict. c. 109, s. 17, it 
 appeared that the prisoners began to play at skittles in the prose- 
 cutor's presence ; and B., one of them, appeared to be very drunk, 
 and played so badly that he lost every game ; and the others then 
 persuaded the prosecutor to play with B., and stake large sums 
 upon the game, for he was sure of winning ; and the prosecutor 
 accordingly did play with B. several games for large sums, every 
 one of which he lost ; and the prisoners, having got all the prose- 
 cutor's money, ran away ; it was contended that there must be 
 fraud in the act of playing, and here the fraud was before the game 
 commenced ; and the Eecorder held, that the fraud relied on must 
 be a fraud put in practice during the game itself. (/«) 
 
 Where the three prisoners being at a public-house with the pro- 
 secutor, one of them, in concert with the others, placed a pen-case 
 on the table and left the room, and whilst he was absent one of 
 the others took the pen out of the case, and put a pin in its place, 
 and the two prisoners induced the prosecutor to bet with the third 
 prisoner when he returned that there was no pen in the case, 
 and the prosecutor staked fifty shillings, and on the pen-case being 
 turned up another pen fell into the prosecutor's hand, and the 
 prisoners took the money ; it seems to have been considered clear 
 that this case did not come within the 8 & 9 Vict. c. 109, s. 17. (I) 
 
 Inciting Infants to bet or "borrow money. 
 
 By the Betting and Loans (Infants) Act, 1892, (55 Vict. c. 4.) a 
 new offence is created. 
 
 By sec. 1. — (1.) ' If any one, for the purpose of earning commission, 
 reward, or other profit, sends or causes to be sent to a person whom he 
 knows to be an infant any circular, notice, advertisement, letter, 
 telegram, or other document which invites or may reasonably be 
 implied to invite the person receiving it to make any bet or wager, 
 or to enter into or take any share or interest in any betting or 
 
 (k) R. v. Bailey, 4 Cox, C. C. 390. The game of skittles was more reasonably in- 
 
 prisoners were convicted of a conspiracy eluded within the latter branch of the 
 
 to cheat. It was also contended that the clause : but no opinion was expressed on 
 
 game of skittles was not within the first this point. 
 
 clause of the section ; that the words ' other (I) R. v. Hudson, Bell, C. C. 263, 29 
 game' must be confined to the same sort of L. J. M. C. 145. The prisoners were con- 
 game as those previously specified, which victed of a conspiracy to cheat, 
 were all games of chance ; and that the
 
 932 Inciting Infants to Bet, Etc. [book ii. 
 
 wagering transaction, or to apply to any person or at any place, 
 with a view to obtaining information or advice for the purpose of 
 any bet or wager, or for information as to any race, fight, game, 
 sport, or other contingency upon which betting or wagering is 
 generally carried on, he shall be guilty of a misdemeanor, and shall 
 be liable, if convicted on indictment, to imprisonment, with or 
 without hard labour, for a term not exceeding three months, or to a 
 fine not exceeding one hundred pounds, or to both imprisonment 
 and fine, and if convicted on summary conviction, to imprisonment, 
 with or without hard labour, for a term not exceeding one month, 
 or to a fine not exceeding twenty pounds, or to both imprisonment 
 and fine. 
 
 (2.) If any such circular, notice, advertisement, letter, telegram, 
 or other document as in this section mentioned, names or refers to 
 any one as a person to whom any payment may be made, or from 
 whom information may be obtained, for the purpose of or in relation 
 to betting or wagering, the person so named or referred to shall be 
 deemed to have sent or caused to be sent such document as afore- 
 said, unless he proves that he had not consented to be so named, 
 and that he was not in any way a party to, and was wholly ignorant 
 of, the sending of such document.' 
 
 Sec. 2. — (1) 'If any one, for the purpose of earning interest, com- 
 mission, reward, or other profit, sends or causes to be sent to a person 
 whom he knows to be an infant any circular, notice, advertisement, 
 letter, telegram, or other document which invites or may reasonably 
 be implied to invite the person receiving it to borrow money, or to 
 enter into any transaction involving the borrowing of money, or to 
 apply to any person or at any place with a view to obtaining infor- 
 mation or advice as to borrowing money, he shall be guilty of a 
 misdemeanor, and shall be liable, if convicted on indictment, to im- 
 prisonment, with or withoiit hard labour, for a term not exceeding 
 three months, or to a fine not exceeding one hundred pounds, or to 
 both imprisonment and fine, and if convicted on summary conviction, 
 to imprisonment, with or without hard labour, for a term not exceed- 
 ing one month, or to a fine not exceeding twenty pounds, or to both 
 imprisonment and fine. 
 
 (2.) If any such document as above in this section mentioned sent 
 to an infant purports to issue from any address named therein, or 
 indicates any address as the place at which application is to be made 
 with reference to the subject-matter of the document, and at that 
 place there is carried on any business connected with loans, whether 
 making or procuring loans or otherwise, every person who attends 
 at such place for the purpose of taking part in or who takes part in 
 or assists in the carrying on of such business shall be deemed to 
 have sent or caused to be sent such document as aforesaid, unless 
 he proves that he was not in any way a party to and was wholly 
 ignorant of the sending of such document.' 
 
 Sec. 3. ' If any such circular, notice, advertisement, letter, telegram, 
 or other document as in the preceding sections or either of them 
 mentioned is sent to any person at any university, college, school, 
 or other place of education, and such person is an infant, the person 
 sending or causing the same to be sent shall be deemed to have
 
 chap, xxxviii.] Inciting Infants to Bet, Etc. 933 
 
 known that such person was an infant, unless he proves that he 
 had reasonable ground for believing such person to be of full age.' 
 
 Sec. 4. ' If any one, except under the authority of any court, solicits 
 an infant to make an affidavit or statutory declaration for the purpose 
 of or in connexion with any loan, he shall be liable, if convicted 
 on summary conviction, to imprisonment, with or without hard 
 labour, for a term not exceeding one month, or to a fine not exceed- 
 ing twenty pounds, or to both imprisonment and fine, and if convicted 
 on indictment, to imprisonment, with or without hard labour, for a 
 term not exceeding three months, or to a fine not exceeding one 
 hundred pounds.' 
 
 Sec. 5. ' If any infant, who has contracted a loan which is void in 
 law, agrees after he comes of age to pay any money which in whole 
 or in part represents or is agreed to be paid in respect of any such 
 loan, and is not a new advance, such agreement, and any instrument, 
 negotiable or other, given in pursuance of or for carrying into effect 
 such agreement, or otherwise in relation to the payment of money 
 representing or in respect of such loan, shall, so far as it relates to 
 money which represents or is payable in respect of such loan, and 
 is not a new advance, be void absolutely as against all persons 
 whomsoever. 
 
 For the purposes of this section any interest, commission, or other 
 payment in respect of such loan shall be deemed to be a part of such 
 loan.' 
 
 Sec. 6. ' In any proceeding against any person for an offence under 
 this Act such person and his wife or husband, as the case may be, 
 may if such person thinks fit, be called, sworn, examined, and cross- 
 examined as an ordinary witness in the case.'
 
 CHAPTER THE THIRTY-NINTH. 
 
 OF OFFENCES RELATING TO DEAD BODIES. 
 
 Removing dead bodies. — It is an indictable offence to take up a 
 dead body, even for the purpose of dissection. Upon an indictment 
 for this offence it was moved in arrest of judgment, that if it were 
 any crime, it was one of ecclesiastical cognizance only ; that it was 
 not made penal by any statute ; and that the silence of Stamford, 
 Hale, and Hawkins, upon this subject, afforded a very strong argument 
 to show that there was no such offence cognizable in the criminal courts. 
 But the Court said, ' that common decency required that the practice 
 should be put a stop to; that the offence was cognizable in a criminal 
 Court, as being highly indecent, and contra bonos mores; at the bare 
 idea alone of which nature revolted. That the purpose of taking up 
 the body for dissection did not make it less an indictable offence : 
 and that, as it had been the regular practice of the Old Bailey, in 
 modern times, to try charges of this nature, many of which had 
 induced punishment, the circumstance of no writ of error having 
 been brought to reverse any of these judgments was a strong proof 
 of the universal opinion of the profession upon this subject ; and 
 they, therefore, refused even to grant a rule to show cause, lest that 
 alone should convey to the public an idea that they entertained a 
 doubt respecting the crime alleged, (a) To sell the dead body of a 
 capital convict for the purposes of dissection, where dissection is no 
 part of the sentence, is a misdemeanor, and indictable at common 
 law. (b) 1 To expose the naked dead body of a child in a public high- 
 way is, as we have seen, an indictable misdemeanor, (c) 
 
 It is an offence against decency to take a person's dead body, with 
 intent to sell or dispose of it for gain and profit. An indictment 
 charged (inter alia) that the prisoner a certain dead body of a person 
 unknown lately before deceased wilfully, unlawfully, and indecently 
 did take and carry away, with intent to sell and dispose of the same 
 for gain and profit ; and it being evident that the prisoner had taken 
 the body from some burial ground, though from what particular 
 place was uncertain, he was found guilty upon this count. And it 
 
 («) R. v. Lynn, 2 T. Rep. 733. 1 Leach, to strip it, should he banished from society, 
 
 497. 2 East, P. C. c. 16, s. 89, p. 652. and no one suffered to relieve his wants till 
 
 In 4 Black. Com. 236, 237, stealing a the relations of the deceased consented to 
 
 corpse is mentioned as a matter of great his readmission. 
 
 indecency ; and the law of the Franks is (b) R. v. Cundick, D. & R. N. P. C. 13, 
 
 mentioned (as in Montesqu. Sp. L. b. 30, Graham, B. 
 
 ch. 19), which directed that a person who (c) R. v. Clark, 15 Cox C. C. 169. Ante, 
 
 had dug a corpse out of the ground in order p. 748. 
 
 American Note. 
 1 See C v. Loring, 8 Pick. 370.
 
 chap, xxxix.] Of Offences relating to Dead Bodies. 935 
 
 was considered that this was so clearly an indictable offence, that 
 no case was reserved, (cc) 
 
 It is a misdemeanor at common law to remove without lawful 
 authority a corpse from a grave in a burying-ground of a congrega- 
 tion of Protestant dissenters ; and it is no defence to such a charge 
 that the motive for removing the corpse was pious and laudable. 
 The indictment charged the defendant with unlawfully entering a 
 burial-ground belonging to a congregation of Protestants dissenting 
 from the Church of England, and unlawfully and indecently opening 
 the grave of Louisa Sharpe, and unlawfully and indecently carrying 
 away her body. The defendant's mother and some other relations 
 had been buried in one grave in the burying-ground of a congregation 
 of dissenters at Hitchin, with the consent of those that were inter- 
 ested. The defendant's father had recently died, and the defendant 
 prevailed on the wife of the person who had the key of the burying- 
 ground to allow him to cause the said grave to be opened, upon the 
 pretext that he wished to bury his father in that grave, and in order 
 to examine whether the size of the grave would admit his father's 
 coffin. He caused the coffins of his stepmother and two children 
 to be taken out, and so came to the coffin of his mother, which was 
 under theirs, and was much decomposed, and caused the remains of 
 this coffin, with the corpse therein to be placed in a shell and carried 
 to a cart and driven some miles away towards a churchyard where 
 he intended to bury his father's corpse with the remains of his 
 mother. These acts were done without the consent of the congre- 
 gation or the trustees having the legal estate in the ground ; and the 
 jury found that the statement of the defendant that he intended to 
 bury his father there was only a pretext, and that his real intention 
 from the beginning was to remove his mother's corpse ; but that he 
 acted throughout without intentional disrespect to any one, being actu- 
 ated by motives of affection to his mother and of religious duty ; and, 
 upon a case reserved, Erie, J., delivered judgment : ' We are of 
 opinion that the conviction ought to be affirmed. The defendant 
 was wrongfully in the burial-ground, and wrongfully opened the 
 grave, and took out several corpses, and carried away one. We 
 say he did this wrongfully, that is to say, by trespass ; for the licence 
 which he obtained to enter and open from the person who had the 
 care of the place, was not given or intended for the purpose to which 
 he applied it, and was, as to that purpose, no licence at all. The 
 evidence for the prosecution proved the misdemeanor, unless there 
 was a defence. We have considered the grounds relied on in that 
 behalf, and, although we are fully sensible of the estimable motives on 
 which the defendant acted, namely, filial affection and religious duty, 
 still neither authority nor principle would justify the position that 
 the wrongful removal of a corpse was no misdemeanor if the motive 
 for the act deserved approbation. A purpose of anatomical science 
 would fall within that category. Neither does our law recognize 
 the right of any one child to the corpse of its parent as claimed by 
 the defendant. Our law recognizes no property in a corpse, and the 
 
 (cc) R. v. Gilles, Bayley, J. MS. Bayley, J., R. & R. 366, note (5). And see R. v. 
 Duffin, R. & R. 365.
 
 936 Of Offences relating to Dead Bodies. [book ii. 
 
 protection of the grave at common law, as contradistinguished from 
 ecclesiastical protection to consecrated ground, depends upon this 
 form of indictment, and there is no authority for saying that relation- 
 ship will justify the taking a corpse away from the grave where it 
 has been buried.' (d) 
 
 Neglect or refusal to bury dead body. — ' A man is bound to give 
 Christian burial to his deceased child, if he has the means of doing 
 so ; but he is not liable to be indicted for a nuisance for not burying 
 his child, if he has not the means of providing burial for it. He 
 cannot sell the body, put it into a hole, or throw it into a river ; 
 but unless he has the means of giving the body Christian burial, he 
 is not liable to be indicted, even though a nuisance may be occa- 
 sioned by leaving the body unburied, for which the parish officer 
 would probably be liable.' (e) The prisoner was indicted for having 
 neglected and refused to bury the body of his deceased child, 
 whereby a nuisance was created. The prisoner, at the time of the 
 death of his child, was a pauper receiving parochial relief from a 
 parish in the Leicester union, and soon after the death of the child 
 he applied to the relieving officer of that parish for assistance to bury 
 the child. The relieving officer required the prisoner to sign an 
 undertaking, on demand, to repay the guardians of the union the sum 
 advanced by way of loan in payment for the coffin and ground for the 
 child. (/) This was refused by the prisoner, and the relieving 
 officer refused to render him any assistance in the burial of the child, 
 and the body in consequence remained unburied and occasioned a 
 nuisance. The jury were directed that the prisoner was bound to 
 provide for the burial of his deceased child, if he could by any lawful 
 way procure the means of doing so ; and that as the prisoner had been 
 offered relief by way of loan for the purpose of burial, he was bound 
 to receive it, and that consequently he was not excused from his 
 liability to provide for the interment of the deceased, and was liable 
 to be convicted for the nuisance. But, upon a case reserved, the 
 judges were unanimously of opinion that this direction was wrong ; 
 for although it was perfectly true that the prisoner, if he had the 
 means, was bound to provide for the burial of his child, yet he was 
 not bound to incur a debt for that purpose, and consequently he was 
 not bound to accept the loan on the terms proposed to him. (g) 
 
 But to burn a dead body instead of burying it is not indictable 
 unless it is so clone as to amount to a public nuisance. (Ii) To burn a 
 body in order to prevent an inquest being held upon it where such an 
 inquest ought to be held would be a misdemeanor, (i) 
 
 The refusal or neglect to bury dead bodies by those whose duty it is 
 
 (d) R. v. Sharpe, D. & B. C. C. 160. their control, to which such person may 
 See also R. v. Jacobson, 14 Cox, C. C. 522, have been chargeable, or in which he may 
 where the removal of bodies from a disused have died, or otherwise in which such body 
 burial ground was held indictable. may be. 
 
 (e) Lord Campbell, C. J., in R. v. Vann, ( ;) This was done under an order of the 
 2 Den. C. C. 325. The 7 & 8 Vict. c. 101, poor law commissioners and an order of the 
 s. 31, enacts that it shall be lawful for guardians. 
 
 guardians, or where there are no guardians (7) R. v. Vann, supra. 
 
 for the overseers, to bury the body of any (h) See a very learned charge to a jury 
 
 poor person which may be within their by Stephen, J., reported as R. v. Price, 12 
 
 parish or union respectively, and to charge Q. B. D. 247. The prisoner was acquitted, 
 the expense thereof to any parish under (?) See post, p. 943.
 
 chap, xxxix.] Of Offences relating to Dead Bodies. 937 
 
 to perform the office, appears also to have been considered as a misde- 
 meanor. Thus, Abney, J., in delivering the opinion of the Court of 
 Common Pleas, said, ' The burial of the dead is (as I apprehend) the 
 duty of every parochial priest and minister ; and if he neglect or re- 
 fuse to perform the office, he may, by the express words of Canon 86, 
 be suspended by the Ordinary for three months. And if any tem- 
 poral inconvenience arise, as a nuisance, from the neglect of the inter- 
 ment of the dead corpse, he is punishable also by the temporal 
 Courts, by indictment or information.' (J) 
 
 It was held, after elaborate argument, that a child who has received 
 the outward and visible form of baptism by a dissenting minister, not 
 being a lawful minister of the Church of England, nor episcopally 
 ordained, is to be considered as baptized, and is entitled to have the 
 burial service read at its interment by the clergyman of the parish in 
 which it dies ; and that the refusal to read the service over a child so 
 baptized brings the party so refusing within the provisions of Canon 
 86, and the Court is bound to pronounce that the party is subject to 
 suspension for three months, and also to the costs of the proceedings, (k) 
 
 The right of sepulture in the parish churchyard is a common-law 
 right ; but the mode of burial a subject of ecclesiastical cognizance 
 alone. (/) If therefore a clergyman were absolutely to refuse to bury the 
 body of a dead person brought for interment in the usual way, it seems 
 that the Court of Queen's Bench would grant a mandamus to compel 
 him to inter the body ; but that Court will not grant a mandamus to 
 compel a clergyman to bury a body in an unusual and extraordinary 
 manner, e.g. in an iron coffin, (m) 
 
 Every person dying in this country and not within certain exclu- 
 sions laid down by the ecclesiastical law, has a right to Christian 
 burial ; and that implies the right to be carried from the place where 
 his body lies to the parish cemetery, (n) The common law casts on 
 some one the duty of carrying to the grave, decently covered, the 
 dead body of any person dying in such a state of indigence as to leave 
 no funds for that purpose, (o) It should seem that the person under 
 whose roof a poor person dies is bound to carry the body, decently 
 covered, to the place of burial ; he cannot keep him unburied, nor do 
 anything which prevents Christian burial : he cannot therefore, cast 
 him out, so as to expose the body to violation, or to offend the feel- 
 ings, or endanger the health of the living ; and, for the same reason, 
 he cannot carry him uncovered to the grave. It will probably be 
 
 (j) Andrews v. Cawthorne, Willes, 537 and a Wesleyan minister by whom the child 
 
 note (a). Abney, J., cited a case, H. 7 G. 1, was baptized could be considered, with refer- 
 
 B. R. where that Court made a rule upon ence to this question, in no other light than 
 
 the Rector of Daventry, in Northampton- as a layman. In Kemp r. Wickes, 3 Phill. 
 
 si lire, to show cause why an information Rep. 264, a similar decision had been made 
 
 should not be filed, because he neglected to with reference to a person baptized by a min- 
 
 bury a poor parishioner who died in that ister of the Calvinistic Independent's, 
 parish. See this case as stated in Mastin (I) The 43 & 44 Vic. c. 41, makes pro- 
 
 v. Escott, reported by Dr. Curteis, p. 268, vision for the burial of persons in church- 
 
 and the affidavits used in it, in the Appen- yards and graveyards without the rites of 
 
 dix to that case, p. 291, et seq. the Church of England, on notice being 
 
 (k) Mastin v. Escott, decided in the given to the clergyman. 
 Arches Court of Canterbury, May 8, 1841, by (m) R. v. Coleridge, 2 B. & Aid. 806. 
 
 Sir H. Jenner, and reported by Dr. Curteis. (n) Per Lord Denman, C. J. R. v. Stew- 
 
 The ground of this decision was that a child art, 12 A. & E. 773. 
 baptized by a layman was validly baptized, (o) Per Lord Denman, C. J., ibid.
 
 938 Of Offences relating to Dead Bodies. [book ii. 
 
 found, therefore, that where a pauper dies in any parish house, poor- 
 house, or union house, that circumstance casts on the parish or 
 union, as the case may be, to bury the body ; not by virtue of the 
 statute of Elizabeth, but on the principles of the common law. Q?) 
 But the duty is not cast upon the overseers, where the death does not 
 take place under the roof of any parish house, or that which, under 
 the circumstances, may be considered as such. A married woman 
 residing with her husband in a parish was admitted as an inpatient 
 in a hospital in that parish, and died in it, and the husband was un- 
 able from poverty to take the body away and bury it ; he was receiving 
 weekly relief from the parish, and he believed that he was settled in 
 it. The parish officers had been requested to bury the body, but had 
 refused. The Court of Queen's Bench held that the burial of a 
 pauper receiving relief, but not dying in any parish house, was not 
 within the objects of the 43 Eliz. c. 2, expressed or implied ; and, 
 after laying down the principles above stated, held that those princi- 
 ples would rather cast the burden on the hospital than on the parish, 
 and formed an additional, though not a necessary reason for holding 
 that the parish was not bound to bury the body, (q) 
 
 The 7 & 8 Vict. c. 101, s. 31, makes it lawful for guardians, or 
 where there are no guardians for overseers, to bury the body of any 
 poor person which may be within their parish or union, and to charge 
 the expense to any parish within their control to which such person 
 may have been chargeable, or in which he may have died, or other- 
 wise in which such body may be ; and unless the guardians, in com- 
 pliance with the desire of such person expressed in his lifetime, or by 
 any of his relations, or for any other cause, direct the body to be 
 buried in the churchyard or burial-ground of the parish to which 
 such person has been chargeable (which they are authorised to do), 
 every dead body which the guardians or any of their officers duly 
 authorised shall direct to be buried at the expense of the poor-rates 
 shall (unless the deceased person or the husband or wife or next of 
 kin of such deceased person have otherwise desired) be buried in the 
 churchyard or other consecrated burial-ground in or belonging to the 
 parish, division of parish, chapelry or place in which the death may 
 have occurred ; (r) and, after providing for the burial fees, the clause 
 forbids any officer connected with the relief of the poor to receive any 
 money for the burial of the body of any poor person, or to act as 
 undertaker for personal gain or reward, or to receive any money from 
 any dissecting school or school of anatomy or hospital or from any 
 person to whom any such body may be delivered, or to derive any 
 personal emolument for or in respect of the burial or disposal of 
 any such body, under a penalty recoverable before two justices of 
 the peace, (s) 
 
 Licence for anatomical examination of dead bodies. — The 2 & 3 
 Will. 4, c. 75, ' An Act for regulating Schools of Anatomy,' author- 
 
 (p) Ibid. overcrowded, empowers the guardians or 
 (q) R. v. Stewart, supra. overseers to bury the poor in a neighbour- 
 ly) It may, if wished, be buried without ir.g parish ; and sec. 2 empowers them to 
 the rites of the Church of England. See enter into agreement with cemetery compa- 
 43 & 44 Vict. c. 41, s. 2. nies and burial boards for the burial of the 
 
 (s) The IS & 19 Vict. c. 79, s. 1, where poor. See 12 & 13 Vict. c. 103, s. 16. 
 the burial ground of a parish is closed or
 
 chap, xxxix.] Of Offences relating to Bead Bodies. 939 
 
 ises the Secretary of State for the Home Department to grant 'a 
 licence to practise anatomy to any fellow or member of any college 
 of physicians or surgeons, or to any graduate or licentiate in medi- 
 cine, or to any person lawfully qualified to practise medicine in 
 any part of the United Kingdom, or to any professor or teacher of 
 anatomy, medicine, or surgery, or to any student attending any school 
 of anatomy, on application from such party for such purpose, counter- 
 signed by two of his Majesty's justices of the peace acting for the 
 county, city, borough, or place wherein such party resides, certifying 
 that, to their knowledge or belief, such party so applying is about to 
 carry on the practice of anatomy.' 
 
 By sec. 2, the secretary of state may appoint inspectors of places 
 where anatomy is carried on ; and by sec. 3, may direct what district 
 such inspectors shall superintend. By sec. 4, every inspector is to make 
 a quarterly return to the secretary of state of every body that, during 
 the preceding quarter, has been removed for examination to every 
 separate place in his district where anatomy is carried on, distinguish- 
 ing the sex, and, as far as is known at the time, the name and age of 
 each person whose body was so removed. 
 
 By sec. 5 inspectors may visit and inspect, at any time, any place, 
 within their district, notice of which place has been given, that it is 
 therein intended to practise anatomy. 
 
 Sec. 7. ' It shall be lawful for any executor or other party having 
 lawful possession of the body of any deceased person, and not being 
 an undertaker or other party intrusted with the body for the purpose 
 only of interment, to permit the body of such deceased person to 
 undergo anatomical examination, unless, to the knowledge of such 
 executor or other party, such person shall have expressed his desire, 
 either in writing at any time during his life, or verbally in the pres- 
 ence of two or more witnesses during the illness whereof he died, 
 that his body after death might not undergo such examination, or 
 unless the surviving husband or wife, or any known relative of the 
 deceased person, shall require the body to be interred without such 
 examination.' 
 
 Sec. 8. ' If any person, either in writing at any time during his 
 life, or verbally in the presence of two or more witnesses during the 
 illness whereof he died, shall direct that his body after death be 
 examined anatomically, or shall nominate any party by this Act 
 authorized to examine bodies anatomically to make such examination, 
 and if, before the burial of the body of such person, such direction or 
 nomination shall be made known to the party having lawful posses- 
 sion of the dead body, then such last-mentioned party shall direct 
 such examination to be made, and, in case of any such nomination as 
 aforesaid, shall request and permit any party so authorized and nomi- 
 nated as aforesaid to make such examination, unless the deceased 
 person's surviving husband or wife, or nearest known relative, or any 
 one or more of such person's nearest known relatives, being of kin in 
 the same degree, shall require the body to be interred without such 
 examination.' 
 
 By sec. 9, no body is to be removed for anatomical examination from 
 the place where such person died until after forty-eight hours from 
 the death, nor unless a certificate, stating in what manner such per-
 
 940 Of Offences relating to Dead Bodies. [book ii. 
 
 son came by his death, shall have been given by the medical man who 
 attended such person, or who examined the body after death. 
 
 Sec. 10. 'It shall be lawful for any member or fellow of any 
 college of physicians or surgeons, or any graduate or licentiate in 
 medicine, or any person lawfully qualified to practise medicine in 
 any part of the United Kingdom, or any professor, teacher, or student 
 of anatomy, medicine, or surgery, having a licence from his Majesty's 
 principal secretary of state or chief secretary as aforesaid, to receive 
 or possess for anatomical examination, or to examine anatomically, 
 the body of any person deceased, if permitted or directed so to do by 
 a party who had at the time of giving such permission or direction 
 lawful possession of the body, and who had power, in pursuance of 
 the provisions of this Act, to permit or cause the body to be so 
 examined, and provided such certificate as aforesaid were delivered by 
 such party together with the body.' 
 
 By sec. 11, such persons are to receive a certificate with the body, and 
 transmit it and a return of the time the body was received, and other 
 matters, to the inspector of the district ; and by sec. 12, notice is to 
 be given to the secretary of state of places where anatomy is intended 
 to be practised. 
 
 By sec. 13, bodies are to be removed in a decent coffin or shell, and 
 after undergoing anatomical examination are to be decently interred 
 in consecrated ground, or in some public burial-ground, in use for 
 persons of that religious persuasion to which the person whose body 
 was so removed belonged. 
 
 Sec. 14. ' No member or fellow of any college of physicians or 
 surgeons, nor any graduate or licentiate in medicine, nor any person 
 lawfully qualified to practise medicine in any part of the United 
 Kingdom, nor any professor, teacher, or student of anatomy, medicine, 
 or surgery, having a licence from his Majesty's principal secretary of 
 state or chief secretary as aforesaid, shall be liable to any prosecu- 
 tion, penalty, forfeiture, or punishment for receiving or having in his 
 possession for anatomical examination, or for examining anatomi- 
 cally, any dead human body, according to the provisions of this 
 Act,' 
 
 By sec. 15, the Act is not to prohibit any post mortem examination 
 directed by competent authority. 
 
 Sec. 18. ' Any person offending against the provisions of this Act 
 in England or Ireland shall be deemed and taken to be guilty of a 
 misdemeanor, and, being duly convicted thereof, shall be punished by 
 imprisonment for a term not exceeding three months, or by a fine not 
 exceeding fifty pounds, at the discretion of the Court before which he 
 shall be tried ; and any person offending against the provisions of' 
 this Act in Scotland shall, upon being duly convicted of such offence, 
 be punished by imprisonment for a term not exceeding three months, 
 or by a fine not exceeding fifty pounds, at the discretion of the Court 
 before which he shall be tried.' 
 
 The prisoner, the master of a workhouse, was indicted for dispos- 
 ing of the dead bodies of some of the paupers who died in the work- 
 house, for the purpose of dissection, and for gain and profit to 
 himself. He had in collusion with an undertaker caused the bodies 
 of several paupers to be shown to their relatives in coffins, and every
 
 chap, xxxix.] Of Offences relating to Dead Bodies. 941 
 
 appearance of regular funerals to be gone through, and the relatives 
 followed to the cemetery what they supposed to be the body of the 
 deceased, when in reality just before the funeral left the workhouse, 
 other coffins were substituted for those the relatives had seen, and 
 the bodies were in the evening taken to Guy's Hospital for dissec- 
 tion, all the necessary formalities required by the 2 & 3 Will. 4, c. 75, 
 having been duly complied with. In no case did the relatives of the 
 deceased persons in terms require that their bodies should be buried 
 without anatomical examination ; and indeed they appeared to have 
 believed that the bodies were buried without any such examination. 
 It did not appear that the prisoner made any regular charge to the 
 hospital or surgeons in respect of the bodies supplied to them ; but 
 in 1856 he received £19 10s., and in 1857, £26 from Guy's Hospital, 
 as gratuities for his trouble in going through the formalities, giving 
 the notices, and obtaining the certificates required by the Anatomy 
 Act, and the amount paid him was in proportion to the number of 
 bodies supplied. These payments were in contravention of the 7 & 8 
 Vict. c. 101, s. 31. The jury found that the prisoner caused the dead 
 bodies of four paupers to be delivered to the undertaker, and that he 
 delayed the burial of them for an unreasonable length of time, in order 
 that they might be dissected in the mean time, and that he did so for 
 gain and profit for himself ; and that he caused the appearance of a 
 funeral of dead bodies to be gone through, with a view to pre- 
 vent their relatives requiring the bodies to be interred without 
 being subject to anatomical examination, and that, but for such 
 supposed funeral, the relatives would have required the bodies to be 
 buried without anatomical examination. It was objected that the 
 prisoner having lawful possession of the bodies as master of the 
 workhouse, might lawfully do what he had done, as no relative 
 had required the bodies to be buried without anatomical examina- 
 tion ; and upon a case reserved it was held that this objection was 
 valid, as all that was done by the prisoner was done according to 
 law, for he had legal possession of the bodies, and he did with them 
 that which the law authorised him to do. And though he fraudu- 
 lently prevented the relatives from requiring the bodies to be buried 
 without anatomical examination, yet that did not take away the 
 protection given to him by the statute, (t) 
 
 Bodies cast ashore. — Provision has been made by statute for the 
 suitable interment of such dead bodies as may be cast on shore from 
 the sea. The 48 Geo. 3, c. 75, enacts, that the churchwardens and 
 overseers of parishes in England, in which any dead body shall be 
 found thrown in, or cast on shore from the sea, shall upon notice 
 
 (t) R. v. Feist, D. & B. C. C. 590, 27 bodies by the prisoner was, therefore, a 
 
 L. J. M. C. 164. This decision seems wholly illegal act. The Court intimated 
 
 clearly wrong, as the master of a workhouse that possibly the prisoner and undertaker 
 
 is plainly merely the servant of the guar- might have been indicted for a conspiracy 
 
 dians or parish officers, and the possession to prevent the relatives making the requi- 
 
 of the workhouse is in them. Governors of sition ; or that the prisoner might be in- 
 
 the poor of Bristol v. Wait, 5 A. & E. 1. dieted for preventing the requisition being 
 
 And the master of a workhouse has no more made. Qitcvre, whether an indictment would 
 
 possession of the things in the workhouse have lain for causing the funeral service 
 
 than any servant of the things in his mas- to be performed over the empty coffins ? 
 
 ter's house. The dealing with the dead C. S. G.
 
 942 Of Offences relating to Dead Bodies. [book h. 
 
 of the body lying within their parishes, cause the same to be forth- 
 with removed to some convenient place ; and with all convenient 
 speed to be decently interred in the churchyard or burial-ground of 
 such parishes ; and if the body be thrown in, or cast on shore in any 
 extra-parochial place, where there is no churchwarden or overseer, a 
 similar duty is imposed upon the constable or headborough of such 
 place. (%) 
 
 It is further enacted, that every minister, parish clerk, and sexton, 
 of the respective parishes, shall perform their duties as is customary 
 in other funerals, and admit of such dead body being interred, without 
 any improper loss of time, receiving such sums as in cases of burials 
 made at the expense of the parishes, (v) The statute provides also as 
 to the expenses of such burials, and the raising of money to defray 
 them ; gives a reward of five shillings to the persons first giving 
 notice to the parish officers, or to the constable or headborough of an 
 extra-parochial place, of any dead body being cast on shore; and 
 imposes a penalty of five pounds on persons finding dead bodies and 
 not giving notice, and on parish officers neglecting to execute the 
 Act. (w) An appeal to the quarter sessions is also given to any person 
 thinking himself aggrieved by anything done in pursuance of the 
 Act. (x) 
 
 Preventing burial. — The preventing a dead body from being in- 
 terred has been considered as an indictable offence. Thus, the master 
 of a workhouse, a surgeon, and another person, were indicted for a con- 
 spiracy to prevent the burial of a person who had died in a workhouse. (?/) 
 And though Hyde, C. J., upon a question how far the forbearance to 
 sue one who fears to be sued, is a good consideration for a promise, (z) 
 cited a case where a woman who feared that the dead body of her 
 son would be arrested for debt was holden liable, upon a promise to 
 pay in consideration of forbearance, though she was neither executrix 
 nor administratrix ; (a) yet the other judges are said to have doubted 
 of this ; (b) and in one case, Lord Ellenburough, C. J., said it would 
 be impossible to contend that such a forbearance could be a good con- 
 sideration for an assumpsit, (c) Lord Ellenborough, C. J., continued, 
 * to seize a dead body upon any such pretence would be contra bonos 
 mores, and an extortion upon the relatives.' And in a subsequent 
 part of the case, his Lordship said, ' As to the case cited by Hyde, 
 C. J., of a mother who promised to pay on forbearance of the plaintiff 
 to arrest the dead body of her son, which she feared he was about to 
 do, it is contrary to every principle of law and moral feeling : such 
 an act is revolting to humanity, and illegal.' 
 
 A gaoler has no right to detain the body of a person who died in 
 prison for any debts due to himself. (d) If he does so he may be 
 indicted, (e) 
 
 An indictment will lie for wilfully obstructing and interrupting a 
 
 (u) 48 Geo. 3, c. 75, s. 1. tioned ; but it is said that Hyde, C. J., cited 
 
 (v) Id. ibid. s. 2. it as a case that occurred in the Court of 
 
 (w) Ibid. ss. 1, 3, 4, 5, 6, 7, 8, 12, 13, 14. Common Pleas when he sat there. 
 (x) Id. s. 10. (b) Quick v. Ooppleton, 1 Vent. 161. 
 
 (v) R. v. Young, cited in R. v. Lynn, 2 (c) Jones v. Ashburnham, 4 East, 460. 
 
 T. R. 734. (d) R. v. Fox. 2 Q. B. 247. 
 
 (z) Quick v. Coppleton, 1 Vent. 161. (e) R. v. Scott, 2 Q. B. 248. 
 
 (a) The name of the case is not men-
 
 chap, xxxix.] Of Offences relating to Dead Bodies. 943 
 
 clergyman in reading the burial service, and interring a corpse ; but 
 such an indictment must allege that the person obstructed was a 
 clergyman, and that he was in the execution of his office, and law- 
 fully burying the corpse ; and it must also show how the party was 
 obstructed, as by setting out the threats and menaces used. And it 
 is not sufficient to allege that the party did unlawfully, by threats 
 and menaces, prevent the burial. (/) 
 
 Preventing coroner's inquest. — There is one case in which the too 
 speedy interment of a dead body maybe an indictable offence ; namely, 
 where it is the body of a person who has died a violent death. In 
 such case, by Holt, C. J., the coroner need not go ex officio to take the 
 inquest, but ought to be sent for, and that when the body is fresh ; 
 and to bury the body before he is sent for, or without sending for him, 
 is a misdemeanor. Qf) It is also laid down that if a dead body in 
 prison, or other place, whereupon an inquest ought to be taken, be 
 interred or suffered to lie so long that it putrefy before the coroner 
 has viewed it, the gaoler or township shall be amerced, (h) It is a 
 misdemeanor to burn or otherwise dispose of a dead body with intent 
 thereby to prevent the holding upon such body of an intended coro- 
 ner's inquest in a case where the coroner has jurisdiction to hold an 
 inquest. A coroner has jurisdiction to hold an inquest if he honestly 
 believes information which has been given to him to be true, which 
 if true, would make it his duty to hold such inquest, (i) 
 
 (/) R. v. Cheere, 4 B. &. C. 902. 7 D. (h) 2 Hawk. P. C. c. 9, s. 23. And see 
 
 & R. 461. See R. v. How, 2 Str. 699. See an indictment against a township for a mis- 
 
 the 24 & 25 Vict. c. 100, s. 36, and the 43 demeanor, in burying a body without notice 
 
 & 44 Vict. c. 41, s. 7, ante, p. 655. to the coroner, 2 Chit. Cr. L. 256. 
 
 (<j) R. v. Clark, 1 Salk. 377. Anon., 7 (0 R. v. Stephenson, 13 Q. B. D. 331. 
 
 Mod. 10. 2 Hawk. P. C. c. 9, s. 23, note 
 4.
 
 CHAPTER THE FORTIETH. 
 
 OP GOING ARMED IN THE NIGHT-TIME FOE THE DESTRUCTION 
 OF GAME AND OF ASSAULTING GAMEKEEPERS. 
 
 Before proceeding to the proper subject of this chapter, it may be 
 well to say a few words as to the property in game. The law of 
 England has never recognised the doctrine of the Roman law, that 
 any trespasser had a right to the game that he caught or killed on 
 any man's land, (a) By the Constitutions of Canute concerning 
 forests, every freeman was entitled to take and dispose of the game 
 on his own land, and no one had a right to enter on the lands of 
 another for such a purpose, (b) And by the common law the owner 
 of land had a possessory property in the game upon his land, so long 
 as it continued upon that land, and he might maintain an action of 
 trespass against any one who entered upon the land, and killed or 
 took any game thereon and carried it away, and recover damages as 
 well for the trespass as for the value of the game, (c) The property 
 in living game was called possessory, because it depended on the 
 possession of the game by reason of the possession of the land 
 whereon it was, and as soon as it quitted the land of its own free 
 will the possessory property ceased. The owner of land has a prop- 
 erty in the game started and killed upon it. (cT) 
 
 The 9 Geo. 4, c. 69, s. 1, reciting the 57 Geo. 3, c. 90, and that ' the 
 practice of going out by night for the purpose of destroying game has 
 nevertheless very much increased of late years, and has in very many 
 instances led to the commission of murder, and of other grievous 
 offences ; and it is expedient to repeal the said recited Act, and to 
 
 (a) Just. Inst. L. II. tit. 1, 12. ornnis homo a venariis regiis. The following 
 
 (b) The law on this subject is stated in is the statement of Brooke, J., in 12 Hen. 8, 
 different terms in different authors in conse- 10 : ' If I let my falcon fly in my own land 
 quence of different translations having been at a pheasant, and he kills the pheasant in 
 made of the original Saxon. 4 Inst. 320. The your land, you do not gain any property in 
 law may he found, Spelm. Glos. tit. Foresta, the pheasant ; but I can take the pheasant, 
 p. 242." No. 30. Edit. 1687. 4 Inst. 320. and shall not be punished except for the en- 
 2 Blac. Com. 414, who cites it as chapter try into your land ; for it was by my indus- 
 77, and says that it was the ancient law of try and labour, and when my falcon had 
 the Scandinavian continent, citing Stiern- caught it, it was in my possession.' And 
 hook de jure Sweon. 1. 2, c. 8. Deac. G. L. see Sutton v. Moody, 12 Mod. 145, per 
 40, citing also a licence of Canute to the Holt, C.J. ; Churchward v. Studdy, 14 East, 
 same effect. In 2 Black. Com. 414, a similar 249. 
 
 law of Edward the Confessor, chapter 36, is (c) See Osborne v. Meadows, 12 C. B. 
 
 cited. In 4 Inst. 293, a charter of the Em- (N. S.) 10 ; Read v. Edwards, 17 C. B. (N. 
 
 press Maud is cited containing a similar S.) 245. 
 
 law. From a comparison of these several (d) Lonsdale v. Rigg, 11 Exch. R. 654 ; 
 
 authorities, the following seems to be sub- 1 H. & N. 923. Blades v. Higgs, 12 C. B. 
 
 stantially correct: Sit quilibet liber homo (N. S.) 501. Kenyon v. Hart, 11 Law T. 
 
 dignus venalione sud in silvd et in agris 733, 13 C. B. (N. S.) 844, affirmed in the 
 
 sibi propriis et in domino suo, sed abstineat House of Lords, 12 L. T. 615.
 
 chap. XL.] Going Armed ui Night-Time to Destroy Game, Etc. 945 
 
 make more effectual provisions than now by law exist for repressing 
 such practice/ enacts [' that the said recited Act shall be, and the 
 same is hereby repealed, except so far as the same repeals any other 
 Acts] ; and if any person shall [after the passing of this Act], by night, 
 unlawfully take or destroy any game or rabbits in any land, whether 
 open (e) or inclosed (/) or shall by night unlawfully enter or be in 
 any land, whether open or inclosed, (g) with any gun, net, engine, or 
 other instrument, for the purpose of taking or destroying game, (h) 
 such offender shall, upon conviction thereof before two justices of the 
 peace, be committed for the first offence to the common gaol or house 
 of correction for any period not exceeding three calendar months, there 
 to be kept to hard labour, and at the expiration of such period shall 
 find sureties by recognizance, or in Scotland by bond of caution, him- 
 self in ten pounds, and two sureties in five pounds each, or one surety 
 in ten pounds, for his not so offending again for the space of one 
 year next following ; and in case of not finding such sureties, shall be 
 further imprisoned and kept to hard labour for the space of six 
 calendar months, unless such sureties are sooner found ; and in case 
 such person shall so offend a second time, and shall be thereof con- 
 victed before two justices of the peace, he shall be committed to the 
 common gaol or house of correction for any period not exceeding six 
 calendar months, there to be kept to hard labour, and at the expira- 
 tion of such period shall find sureties by recognizance, or bond as 
 aforesaid, himself in twenty pounds, and two sureties in ten pounds 
 each, or one surety in twenty pounds, for his not so (i) offending 
 again for the space of two years next following ; and in case of not 
 finding such sureties, shall be further imprisoned and kept to hard 
 labour for the space of one year, unless such sureties are sooner found ; 
 and in case such person shall so offend a third time, he shall be guilty 
 of a misdemeanor, and being convicted thereof, shall be liable, at the 
 discretion of the Court, to be transported (_/) beyond seas for seven (Jc) 
 years, or to be imprisoned and kept to hard labour in the common 
 gaol, or house of correction, for any term not exceeding two years ; 
 and in Scotland, if any person shall so offend a first, second, or third 
 time he shall be liable to be punished in like manner as is hereby 
 provided in each case.' (7) 
 
 Sec. 2. 'Where any person shall be found upon any land commit- 
 ting any such offence as is hereinbefore mentioned, it shall be lawful 
 for the owner or occupier of such land, or for any person having a 
 
 (e) See R. v. Harris, 12 L. T. 303. The poaehers entering with intent to take both 
 
 words in brackets are repealed by 51 & 52 game and rabbits, and is, therefore, in this 
 
 Vict. c. 57. respect, more extensive than sec. 1. See R. 
 
 (/) Perhaps this section is in part re- v. Ball, R. & M. C. C. R. 330, post, p. 951. 
 pealed by 24 & 25 Vict. c. 96, s. 17; see (/) See In re Reynolds, 1 Sess. C. 51, 
 
 post, p. 947. that a conviction that the defendant should 
 
 (g) See Tapsell v. Croskey, 7 M. & W. enter into recognizances that he should not 
 
 441, as to this word in the Turnpike Act, 3 offend again, omitting the word ' so,' is bad. 
 Geo. 4, c. 126. (_/) Now penal servitude ; ante, p. 73. 
 
 (h) It is to be observed that the word (k) And not less than three years. 
 
 1 rabbits' is here omitted ; so that if poach- (/) Where a person is indicted under this 
 
 ers enter for the purpose of taking rabbits, section for night poaching, after two pre- 
 
 but have not either taken or destroyed any, vious convictions, the previous convictions 
 
 they have committed no offence within sec. should not be proved until the jury find a 
 
 1, and therefore sec. 2 gives no authority to verdict on the other facts of the case. R. v. 
 
 apprehend them. Section 9 extends to Woodfield, 16 Cox, C. C. 314. 
 vol. i. — 60
 
 946 Going Armed in NigM-Time to Destroy Game, Etc. [book ii. 
 
 right or reputed right of free warren or free chase thereon, or for the 
 lord of the manor or reputed manor wherein such land may be situate, 
 and also for any gamekeeper or servant of any of the persons herein 
 mentioned, or any person assisting such gamekeeper or servant, to 
 seize and apprehend such offender upon such land, or in case of pur- 
 suit being made, in any other place to which he may have escaped 
 therefrom, and to deliver him as soon as may be into the custody of 
 a peace officer, in order to his being conveyed before two justices of 
 the peace ; and in case such offender shall assault or offer any violence 
 with any gun, crossbow, firearms, bludgeon, stick, club, or any other 
 offensive weapon whatsoever, towards any person hereby authorized 
 to seize and apprehend him, he shall, whether it be his first, second, 
 or any other offence, be guilty of a misdemeanor, and being convicted 
 thereof, shall be liable, at the discretion of the Court, to be trans- 
 ported beyond seas for seven years, or to be imprisoned and kept to 
 hard labour in the common gaol or house of correction for any term 
 not exceeding two years ; and in Scotland, whenever any person shall 
 so offend, he shall be liable to be punished in like manner.' (m) 
 
 Sec. 4. [' The prosecution for every offence punishable upon sum- 
 mary conviction by virtue of this Act shall be commenced within six 
 calendar months after the commission of the offence] ; and the prose- 
 cution for every offence punishable upon indictment, or otherwise than 
 upon summary conviction, by virtue of this Act, shall be commenced 
 within twelve calendar months after the commission of such offence.' (n) 
 
 Sec. 8. ' On every conviction under this Act for a first or second 
 offence the convicting justices shall return the same to the next 
 quarter sessions for the county, riding, division, city, or place wherein 
 such offence shall have been committed ; and the record of such con- 
 viction, or any copy thereof, shall be evidence in any prosecution to 
 be instituted against the party thereby convicted for a second or third 
 offence ; and the clerk of the peace shall immediately on such return 
 make or cause to be made a memorandum of such conviction in a 
 register to be kept by him of the names and places of abode of the 
 persons so convicted, and shall state whether such conviction be the 
 first or second conviction of the offending party.' 
 
 Sec. 9. ' If any persons, to the number of three or more together, 
 shall by night unlawfully enter or be in any land, whether open or 
 inclosed, for the purpose of taking or destroying game or rabbits, any 
 of such persons being armed with any gun, crossbow, firearms, bludg- 
 eon, or other offensive weapon, each and every of such persons shall 
 be guilty of a misdemeanor, and being convicted thereof before the 
 justices of gaol delivery, or of the Court of great sessions of the county 
 or place in which the offence shall be committed, shall be liable at the 
 discretion of the Court to be transported (o) beyond seas for any term 
 not exceeding fourteen (p) years, nor less than seven years, or to be 
 
 (m) By sec. 3 a justice may issue Ms to which see R. v. Mellor, 2Dowl. P. R. 173. 
 
 punishable under the Act upon 
 mary conviction. and R. v. Hester, 4 Dowl. P. R. 589. 
 
 (n) The words in brackets are repeated (o) Now penal servitude, ante, p. 73. 
 
 by 47 & 48 Vic. c. 43. Sec. 5 gives the form (p) And not less than three years, 
 
 of conviction for offences under the Act ; as
 
 chap. XL.] Go'tny Armed In Niyhl-Tiine to Destroy Game, Etc. 947 
 
 imprisoned and kept to hard labour for any term not exceeding three 
 years.' 
 
 Sec. 12. Tor the purposes of this Act the night shall be con- 
 sidered, and is hereby declared to commence at the expiration of 
 the first hour after sunset, and to conclude at the beginning of the 
 last hour before sunrise.' 
 
 Sec. 13. Tor the purposes of this Act the word "game" shall be 
 deemed to include hares, pheasants, partridges, grouse, heath or moor 
 game, black game, and bustards.' 
 
 The 7 & 8 Vict. c. 29, reciting the 9 Geo. 4, c. 69, ss. 1, 2, and that 
 ' the provisions of the said Act have of late years been evaded and 
 defeated, by the destruction by armed persons at night of game or 
 rabbits, not upon open or enclosed lands, as described in the said 
 Act, but upon public roads and highways, and other roads and paths 
 leading through such lands, and also at the gates, outlets, and open- 
 ings between such lands, and roads, highways, and paths, so that not 
 only has the destruction of game or rabbits not been prevented, but 
 the risk of murder and other grievous offences contemplated by the 
 said Act has been increased, and great danger and alarm occasioned 
 to persons using such roads, highways and paths ; and that it is expe- 
 dient that the remedies provided by the said Act against such offences 
 as hereinbefore mentioned should be extended and applied to the like 
 offences committed upon such roads, highways, and paths,' enacts, 
 ' that from and after the passing of this Act, all the pains, punish- 
 ments, and forfeitures imposed by the said Act upon persons by night 
 unlawfully taking or destroying any game or rabbits in any land, 
 open or enclosed, as therein set forth, shall be applicable to and 
 imposed upon any person by night unlawfully taking or destroying 
 any game or rabbits on any public road, highway, or path, or the 
 sides thereof, or at the openings, outlets, or gates from any such land 
 into any such public road, highway, or path, in the like manner as 
 upon any such land, open or inclosed ; and it shall be lawful for the 
 owner or occupier of any land adjoining either side of that part of 
 such road, highway, or path where the offender shall be, and the 
 gamekeeper or servant of such owner or occupier, and any person 
 assisting such gamekeeper or servant, and for all the persons author- 
 ized by the said Act to apprehend any offender against the provisions 
 thereof, to seize and apprehend any person offending against the said 
 Act or this Act ; and the said Act, and all the powers, provisions, 
 authorities, and jurisdictions therein or thereby contained or given, 
 shall be as applicable for carrying this Act into execution as if the 
 same had been herein specially set forth.' (q) 
 
 By the 24 & 25 Vict. c. 96, s. 17, 'whosoever shall unlawfully and 
 wilfully, between the expiration of the first hour after sunset and 
 the beginning of the last hour before sunrise, take or kill any hare 
 or rabbit, in any warren or ground lawfully used for the breeding 
 or keeping of hares or rabbits, whether the same be inclosed or not, 
 shall be guilty of a misdemeanor.' (r) 
 
 (q) This Act seems to have been a mis- (r) See this section, vol. II. R. v. Garret* 
 
 take in legislation, for the 9 Geo. 4, c. 69, 6 C. & P. 369. Perhaps this section in part 
 
 included all highways. See R. v. Pratt, 4 repeals the 9 Geo. 4, c. 69, s. 1, ante, p. 945, 
 
 E. & B. 860. Mayhew r. Wardley, 14 C. i. e., so much of it as relates to taking, or 
 
 B. (N. S.) 550. killing any hare or rabbit in any warren
 
 948 Going Armed in Night-Tune to Destroy Game, Etc. [book n t 
 
 In consequence of the easy manner in which poachers escaped 
 detection and apprehension by the power to apprehend them being 
 confined to cases where they were found upon the land committing 
 the offence, the 25 & 26 Vict. c. 114, was passed. Sec. 1 defines 
 game to include one or more hares, pheasants, partridges, eggs of 
 pheasants and partridges, woodcocks, snipes, rabbits, grouse, black 
 or moor game, and eggs of grouse, black or moor game ; and sec. 2 
 makes it lawful for ' any constable or peace officer in any county, 
 borough, or place in Great Britain and Ireland in any highway, 
 street, or public place, to search (s) any person whom he may have 
 good cause (t) to suspect of coming from any land where he shall 
 have been unlawfully in search or pursuit of game, or any person 
 aiding or abetting such person, and having in his possession any 
 game unlawfully obtained, or any gun, part of a gun, or nets or 
 engines used for the killing or taking game, and also to stop and 
 search any cart or other conveyance in or upon which such con- 
 stable or peace officer shall have good cause to suspect that any 
 such game or any such article or thing is being carried by any such 
 person, and should there be found any game or any such article or 
 thing as aforesaid upon such person, cart, or other conveyance, to 
 seize and detain such game, article, or thing ; ' and the constable 
 or peace officer is in such case to apply for a summons citing such 
 person to appear before two justices in petty sessions, as provided 
 by the 18 & 19 Vict. c. 106, s. 9, in England and Ireland, and 
 before a sheriff or any two justices in Scotland, and ' if such person 
 shall have obtained such game by unlawfully going on any land in 
 search or pursuit of game, (u) or shall have used any such article 
 or thing as aforesaid for unlawfully killing or taking game, or shall 
 have been accessory thereto, such person shall on being convicted 
 thereof forfeit and pay any sum not exceeding five pounds,' and 
 shall forfeit the game, guns, parts of guns, nets and engines, and 
 the justices are to direct them to be sold or destroyed, and the pro- 
 ceeds of the sale and penalty to be paid to the treasurer of the 
 county or borough ; and if no conviction takes place, the game, 
 article, or thing, or the value thereof, shall be restored to the person 
 from whom it was seized, (v) 
 
 or ground lawfully used for the breeding or what was passing in the policeman's mind 
 
 kee°ping of hares or rabbits. See also the at the time of the endeavour to apprehend, 
 
 Ground Game Act, 1880 (43 & 44 Vict. c. but Martin, B., held that such evidence 
 
 47) . could not be given. Mr. Greaves doubts the 
 
 (s) If a constable see game or rabbits correctness of this. See vol. III. Evidence. 
 upon a person, it is not necessary that there (u) It is not necessary under this clause 
 
 should be a search to authorise a proceeding to prove from what particular land the game 
 
 under the 25 & 26 Vict. c. 114, s. 2, for it was taken. The only question is, whether 
 
 cannot be intended that if a man is seen it was unlawfully taken from any land. See 
 
 coming out of a plantation with game or Brown v. Turner, 13 C. B. (N. S.) 485 ; 
 
 rabbits in his possession it should be neces- Evans v. Bottrill, 3 B. & S. 787. 
 sary to go through the process of searching (v) In order to give the magistrates juris- 
 
 him. Hall v. Knox, 4 B. & S. 515. diction, the game, &c. must be seen by the 
 
 (t) See R. v. Spencer, 3 F. & F. 854, constable on the person of the accused on the 
 
 8o7. In this case the prisoners were in- highway, &c. So where a policeman saw a 
 
 dieted for assaulting the policeman who en- man on a highway with rabbits on his back, 
 
 deavoured to apprehend the prisoners in the who ran across a meadow and threw the rab- 
 
 execution of his duty, and it was proposed bits away, and they were then and there 
 
 to give evidence that the prisoners were ha- taken by the policeman, it was held that the 
 
 bitual poachers, for the purpose of showing conviction was valid. Lloyd v. Lloyd, 14 Q.
 
 chap, xl.] Going Armed in Night-Thneto Destroy Game, Etc. 949 
 
 Limitation of time for taking proceedings. — Upon an indictment for 
 night-poaching under the 9 Geo. 4, c. 69, laying an information before 
 a magistrate is the commencement of the prosecution. The offence 
 was committed on the 4th of December, 1845. The information before 
 the magistrates and warrant were on the 19th of the same month. 
 One prisoner was apprehended and committed on the 5th of Septem- 
 ber, 1846 ; the other on the 21st of October in the same year ; the 
 indictment was preferred on the 5th of April, 1847 ; and, upon a case 
 reserved, the judges were unanimously of opinion that the prosecution 
 was commenced in time, (w) 
 
 Parker and Smith were indicted for night-poaching on the 26th 
 of January, 1861, and a warrant, dated the 5th of February, 1861, 
 was proved to be under the hand of a magistrate, and this warrant 
 recited that information had that day been given of the offence, 
 but no information was given in evidence. Smith was apprehended 
 under this warrant on the 27th of November, 1862, and Parker on 
 the 14th of January, 1864; and, upon a case reserved, it was held 
 that, for the purpose of showing that the prosecution was commenced 
 in due time, the information ought to have been given in evidence, (x) 
 
 On the trial of an indictment for night-poaching, it appeared 
 that the offence was committed on the 12th of January, 1844 ; the 
 indictment was found at the assizes held on the 1st of March, 1845 ; 
 but the warrant by which the defendant was committed on the 
 present charge was on the 11th of December, 1844; and Pollock, 
 C. B., held that the warrant of commitment showed that the pro- 
 secution was commenced within twelve calendar months after the 
 commission of the offence, (y) 
 
 Where a bill of indictment had been preferred within a year 
 after the commission of an offence under the 9 Geo. 4, c. 69, against 
 the prisoner and Eobins, and ignored as to the prisoner, but found 
 against Eobins, who was convicted, and four years afterwards a 
 fresh bill was found against the prisoner; it was considered to be 
 clear that preferring the first bill was the commencement of a pro- 
 secution, but it was doubted whether the condition in sec. 4, requir- 
 ing a prosecution by indictment to be commenced within twelve 
 calendar months, had been complied with by preferring the bill 
 which was ignored, (z) 
 
 Tame pheasants. — On an indictment for night-poaching it appeared 
 
 B. D. 725, commenting on Clarke v. Crowder, M. C. 135. This case was only argued for 
 38 L. J. M. C. 118; L. R. 4 C. P. 638; the prisoners. Qucere, whether the warrant 
 Turner v. Morgan, 44 L. J. M. C. 161; L. was not evidence that the prosecution was 
 I!. 10 C. P. 587. Sec. 3, any penalty in pending at its date ; under that warrant the 
 England is recoverable under the 1 & 2 prisoners had been apprehended, examined, 
 Will. 4, c. 32; in Scotland under the 2 & and committed. 
 
 3 Will. 4, c. 68; and in Ireland under the (?/) R. v. Austin, 1 C. & K. 621. See 
 
 Petty Sessions Ireland Act, 1851. Sec. 4 R. v. Phillips, R. & R. 369. R. v. Casbolt, 
 
 extends the provisions of the 11 & 12 Vict. 11 Cox, C. C. 385, where Byles, J., allowed 
 
 c. 43, to proceedings under this Act. Sec. 5 the prisoner to withdraw his plea of guilty, 
 
 takes away the certiorari, &c; and sec. 6 in order to raise the point that the prosecu- 
 
 gives an appeal against any conviction under tion was not commenced in time, 
 the Act. (~) R. v . Kill mi nster, 7 C. & P. 228, 
 
 (iv) R. v. Brooks, 1 Den. C. C. 217 ; 2 Coleridge, J. The prisoner was acquitted, 
 
 C. & K. 402. See R. v. Wallace, 1 East, P. otherwise the point would have been reserved. 
 C. 186. R. v. Hull, 2 F. & F. 186. for the opinion of the judges. 
 
 (x) R. v. Parker, L. & C. 459, 33 L. J.
 
 950 Going Armed in Night-Time to Destroy Game, Etc. [book ii. 
 
 that some tame pheasants were in coops about 150 yards from a 
 house ; hut they were not shut up, and could run about, and on this 
 night they were roosting in trees close by. Common hens were in the 
 coops, having been used for rearing the pheasants. The prisoners went 
 to the coops, and one said, ' There is nothing here but an old hen ; ' 
 they were looking in other coops when they were apprehended. It 
 was held that these birds could not be considered game within the 
 meaning of the statute. As long as they were under the charge of 
 the hen, as long as she was their guardian, and while they were 
 about her, and running about with her, he who took them was 
 guilty of larceny, (a) 
 
 Allegation of previous convictions. — An indictment alleged that the 
 prisoner was duly convicted before three justices, for that he by night 
 after the expiration of the first hour after sunset, and before the begin- 
 ning of the first hour before sunrise, did by night unlawfully enter a 
 certain close, &c, describing it, with a gun for the purpose of then and 
 there taking and destroying game ; and the prisoner was thereupon 
 adjudged for his said offence, the same being his first offence, to be im- 
 prisoned, &c. ; and that the prisoner afterwards was duly convicted 
 before two justices, for that he by night unlawfully did enter and be 
 in certain inclosed land, &c, describing it, ' with certain instruments 
 for the purpose of killing, taking, and destroying game thereon, this 
 being his second offence;' and was thereupon adjudged, &c. It was 
 objected on error : 1. That the second conviction alleged was not valid, 
 because the first conviction did not appear to have been set out in it ; 
 but it was held that all that was necessary in such an indictment in 
 order to give the Court jurisdiction was to show that there had been 
 two former convictions under the statute, and that was shown here. 
 
 2. It was objected, that the second conviction only said that the 
 prisoner entered 'with certain instruments,' not specifying what they 
 were, or even that they were used for the purpose of killing game ; but 
 it was held that, as it was alleged that the offence was committed by 
 night in the land with instruments for the purpose of taking and 
 destroying game, the latter words being applicable to the instruments 
 as well as to the presence of the party, got rid of all the difficulty. 
 
 3. It was objected, that the second conviction did not allege that the 
 prisoner entered for the purpose of taking game ' by night,' and that 
 the first conviction did not allege that the act was done by night on 
 the particular close ; but it was held that the expression ' by night ' 
 preceding the whole clause quite cured the difficulty as to time. 
 Lastly, it was objected, that the first conviction was ' the first hour 
 before sunrise,' instead of ' last hour before sunrise,' and that this 
 was impossible ; but the objection was overruled, (b) 
 
 (a) R. v. Garnham, 8 Cox, C. C. 451. the defendant entered certain enclosed land 
 Pollock, C. B., and Williams, J. Pollock, by night 'with a net for the purpose of 
 C. B., also said, 'I take it if a man go into taking game, to wit, partridges and pheas- 
 a London market, and buy pheasants' eggs, ants,' was held bad. because it did not state 
 and hatch them under a common hen. when the intent to take the game there. In Cure- 
 the birds became free from control they ton v. R., Cock burn, C. J., and Hill, J., 
 would come under the game laws.' expressed their doubts as to the correctness 
 
 (b) Cureton v. R., 1 P>. & S. 208. 30 L. of this decision. See R. v. Western, 37 L. 
 J. M. C. 149. In Fletcher v. Calthrop, 6 J. M. C. 81 ; 1 L. R. C. C. R. 122. 
 
 Q. B. 880, a conviction which alleged that
 
 chap, xl.] Going Armed in Night- Time to Destroy Game, Etc. 951 
 
 An indictment under the 9 Geo. 4, c. 69, s. 1, for a third offence 
 set out the previous convictions, one of which alleged that the pris- 
 oner ' entered into certain inclosed land in the parish of A. B. for the 
 purpose of taking and destroying game in the night,' and Maule, J., 
 held that the indictment was bad for not alleging the entry by 
 night, (c) 
 
 Authority to apprehend. — Although three or more poachers are out 
 by night armed, and are guilty of an offence within sec. 9, still they 
 are liable to be apprehended under sec. 2, as they are guilty of an 
 offence under sec. 1, as well as under sec. 9. (d) If persons are found 
 actually in the commission of an offence against sec. 1, they may be 
 apprehended by the persons authorised to apprehend by sec. 2, although 
 no notice be given to them of the cause for which they are apprehended ; 
 for the circumstances constitute sufficient notice, (e) And it is not 
 necessary that there should be a written authority ; it is sufficient if the 
 party were employed as a watcher of game preserves by the lord of the 
 manor. (/) And although the persons mentioned in sec. 2 have not 
 authority to apprehend unless the poachers are found upon the manor 
 or land of the persons therein specified ; (g) yet if a poacher be found 
 on the manor by a servant of the lord, and run off it, but being pur- 
 sued return upon it again, the servant may apprehend him, for it is 
 the same as if he had never been off the manor. (Ji) Where a wood 
 was neither the property of the master of an assistant gamekeeper, 
 nor in his occupation, nor within any manor which belonged to him, 
 and he had only the permission of the owner to preserve the game 
 there, it was held that the assistant gamekeeper had no authority to 
 apprehend poachers in the wood, (i) So the gamekeeper of a person 
 who rents the shooting over land has no right to apprehend a 
 poacher ; for a person who rents the shooting is neither the owner 
 nor the occupier of the land, (j) Unless a poacher be found in pur- 
 suit of game between the expiration of the first hour after sunset and 
 the beginning of the last hour before sunrise, there is no power to 
 apprehend him under sec. 2. (ft) 
 
 (c) R. v. Merry, MSS. C. S. G.; 2 Cox, 528, Lord Campbell, C. J., S. P., where the 
 C. C. 240. gamekeeper's master had ' permission by 
 
 (d) 11. v. Ball, R. & M. C. C. R. 330. parol to shoot over the land.' 
 
 See note (h), ante, p. 945. {k) R. v. Tomlinson, 7 C. & P. 183, 
 
 (e) R. v. Payne, R. & M. C. C. R. 378. Coleridge, J. See the case, Vol. III., Man- 
 R. v. Davis, 7 C. & P. 785, Parke, B. R. slaughter, Resistinq Officers. By the 24 & 
 v. Taylor, 7 C. & P. 266, Vaughan, B. See 25 Vict. c. 96, s. 17 (which will be found in 
 these and other similar cases, Vol. III. Mur- Vol. II.), whosoever shall unlawfully and wil- 
 der and Manslaughter, Resisting Officers. fully between the beginning of the last hour 
 
 (/) R. v. Price, 7 C. & P. 178, J. A. before sunrise and the expiration of the first 
 
 Park, and Coleridge, JJ. hour after sunset, take or kill any hare or 
 
 (g) P. v. Addis, 6 C. & P. 388, Patteson, rabbit in any warren, or ground lawfully 
 
 J. R. v. Davis, 7 C. & P. 785, Parke, P>. used for the breeding or keeping of hares or 
 
 (h) R. v. Price, supra The authority rabbits, or shall at any time set or use 
 
 given by sec. 2 to apprehend ' in case of therein any snare or engine for the taking 
 
 pursuit in any other place to which he may of hares or rabbits, is subjected to a penalty 
 
 have escaped,' seems not to have been ad- not exceeding £5 ; and by sec. 103 may, if 
 
 verted to in this case. found committing the offence, be immedi- 
 
 (i) R. v. Addis, supra. ately apprehended without a warrant by any 
 
 [j) R. v. Price, 5 Cox, C. C. 277. Pat- peace officer, or by the owner of the property 
 
 teson and Talfourd, JJ. P. v. Wood, 1 F. & on or with respect to which the offence is 
 
 F. 470, Martin, B. S. P., where the game- committed, or by his servant, or any person 
 
 keeper's master 'had the right of shooting authorized by him. This power only applies 
 
 over' the land. R. v. Wesley, 1 F. & F. to hares and rabbits, and to the places speci-
 
 952 Going Armed in NigM-Time to Destroy Game, Etc. [book ii. 
 
 In consequence of the many cases which had occurred in which 
 questions had arisen as to the right to apprehend persons committing 
 offences in the night, and especially in poaching cases, (I) the 14 & 15 
 Vict. c. 19, s. 11, was framed, (m) It recites that 'doubts have been 
 entertained as to the authority to apprehend persons found commit- 
 ting indictable offences in the night,' and enacts that ' it shall be law- 
 ful for any person whatsoever (it) to apprehend any person, who 
 shall be found committing any indictable offence in the night, and to 
 convey him or deliver him to some constable or other peace officer, in 
 older to his being conveyed, as soon as conveniently may be, before a 
 justice of the peace, to be dealt with according to law.' 
 
 It is to be observed that this clause only applies to the apprehen- 
 sion of persons committing indictable offences ; whilst, therefore, it 
 authorises the apprehension of any persons committing an offence 
 under sec. 9, it does not authorise the apprehension of any person 
 committing an offence under sec. 1 : for that section only creates 
 summary offences, except indeed in the case of a third offence after 
 two previous convictions. 
 
 It is proper also to add, that 'night,' as used in sec. 11 of the 14 
 & 15 Vict. c. 19, is not defined by sec. 13 of that Act; for that sec- 
 tion only defines 'the time at which the night shall commence and 
 conclude in any offence against the provisions of this Act ; ' and sec. 11 
 does not create any offence, but simply authorises the apprehension 
 for any indictable offence committed in the night, whether that offence 
 be an offence at common law or created by statute. 
 
 A count alleged that the defendants by night did unlawfully enter 
 certain land armed with guns for the purpose of taking game, and 
 that they ' were then and there in the said land by night as afore- 
 said by one W. E., the servant of Earl B., found, and that the defend- 
 ants with the guns aforesaid did then and there assault, &c, the said 
 W. E., the said W. E. being then and there authorised to apprehend 
 the defendants ; ' it was objected that the count was bad, as it neither 
 stated, in the words of the Act, that the defendants were found com- 
 mitting the offence, nor sufficiently referred to the previous aver- 
 ments to incorporate them in the latter part of it, and the judgment 
 was arrested upon this objection, (o) 
 
 fied. By the Game Act, 1 & 2 Will. 4, c. 32, fender under this section he must have been 
 
 s. 31, any person found on any land, &c, in required both to quit the land, and also to 
 
 search or pursuit of same, woodcocks, snipes, tell his name ; and the return must be upon 
 
 quails, landrails, or rabbits, may be required the same land as the party was found upon, 
 
 by any person having the right of killing and for. the same purpose, that is, in search 
 
 game upon such land, or by the occupier or or pursuit of game, &c. E. v. Long. 7 C. & 
 
 gamekeeper, or servant of either of them, or P. 314, Williams, J. R. v. Lawrence. Glou- 
 
 by the warden, &c, of any forest, &c, forth- cester Spring Assizes 1843. MSS. C. S. G. 
 
 with to quit the land whereon he is found, S. P. by Wightman, J. But in R. v. 
 
 and to tell his Christian and surname, and Prestney, 3 Cox, C. C. 505, Parke, B., held 
 
 place of abode ; and if such person, after that the prosecutor was not bound both to 
 
 being so required, refuse to tell his real name require the prisoner to quit the land and 
 
 or place of abode, or give such a general also to tell his name and place of abode, but 
 
 description of his place of abode as shall be that he was at liberty to require either of 
 
 illusory for the purpose of discovery, or those three matters of the prisoner, and that 
 
 wilfully continue or return upon the land, he was bound to comply with whichever the 
 
 he may be apprehended by the party so re- prosecutor demanded, 
 quiring, or by any person acting by his order (/) See p<isf, Vol. III. 
 
 and in his aid, and conveyed as soon as con- (//<) It was my clause. C. S. C. 
 
 veniently may be before a magistrate. In (//) See R. v. Sanderson. 1 F. & F. 598. 
 
 order to justify the apprehension of an of- (o) R. v. Curnock, 9 C. & P. 730. Gur-
 
 chap, xl.] Going Armediii Night- Time to Destroy Game, Etc. 953 
 
 Where a count alleged that three entered a close by night with 
 guns for the purpose of taking game, and were found by a servant 
 of the owner of the said close, and that they assaulted him with 
 the said guns ; it was objected that this count intended to allege 
 that the prisoners had committed an offence under sec. 9, and there- 
 fore the count was bad for not alleging that the prisoners were armed ; 
 Patteson, J., asked what answer there was to the objection, and the 
 counsel for the prosecution admitted the force of the objection, and 
 abandoned the count, (p) 
 
 Upon an indictment for wounding with intent to murder a game- 
 keeper of a nobleman, it appeared that a turnpike-road ran through 
 his estate upon which the game was extensively preserved ; but other 
 proprietors preserved game upon lands which were not more than 
 half a mile distant from the place where the wound was given. The 
 keepers swore that they heard shots fired at night in the preserves in 
 quick succession, as if two or more persons were shooting, and sus- 
 pecting that the parties would shortly pass along the turnpike-road, 
 the keepers went and secreted themselves at the road-side. Shortly 
 afterwards, six men came along the road ; they had gun-barrels, 
 which they took from their pockets ; and an affray took place, in 
 which the keeper was wounded. Several pheasants were found on 
 the road after the affray was over. Wightman, J., told the jury that 
 the keepers were not justified in endeavouring to apprehend the 
 poachers ; as they were not found upon any land committing any 
 offence against the game laws, nor was any pursuit made, (q) 
 
 Where on an indictment under 9 Geo. 4, c. 69, s. 2 for assaulting a 
 gamekeeper, the prisoners were proved to have been on land in 
 pursuit of game in the night, and on seeing the keepers made off into 
 a highway, and sat down under a tree, and the keepers went up to 
 them, and were violently assaulted, but the keepers said that they 
 had not followed them with intent to apprehend them ; it was held 
 that the assault must be committed at the time when the keepers are 
 attempting to apprehend the poachers, in order to bring the case 
 within the above section, (r) 
 
 Upon an indictment for wounding with intent to prevent their 
 lawful apprehension, it appeared that the two prisoners were seized 
 while poaching in the night on a preserve which had belonged to the 
 Earl of Lichfield, and was then in the possession of his trustees, and 
 the head-keeper had been appointed by Lord Lichfield twenty years 
 before, and regularly paid by Lord Lichfield's agent to the time in 
 
 ney, B., after taking time to consider, and, offenders to be found on the close ' comrnit- 
 
 I believe, consulting Coleridge, J. Two ting any such offence,' as is mentionnl in 
 
 other objections were intended to be made: the first section, i. c, entering 'with any 
 
 first, that the assault was not alleged to have gun,' &c. It is clear that the count would 
 
 been upon the land where the defendants have been bad if it had alleged the offence 
 
 were found ; secondly, that there was no in the terms of the ninth section, unless 
 
 averment to show that the keeper was in those terms were equivalent to those cre- 
 
 the execution of his duty when the assault ating the offence in the first section ; and as 
 
 was committed, and unless that were the the count alleged the offence in the terms 
 
 case the assault was not within this Act. of the first section, it was clearly good. 
 
 See R. v. Cheere, 4 B. & C. 902. C. S. G. C. S. G. 
 
 {p) E. v. May, 5 Cox, C. C. 176, yet it (q) R. v. Meadham, 2 C. & K. 633. 
 
 is perfectly clear that there was nothing in (r) R. v. Doddridge, 8 Cox, C. C. 335, 
 
 the objection. The indictment was on the Channel], B. 
 second section, and that only requires the
 
 954 Going Armed in Sight-Time to Destroy Game, Etc. [book ii. 
 
 question, but had never had any direct communication with the 
 trustees, and a watcher appointed by the head-keeper, had been 
 wounded by the prisoners whilst apprehending them, and it was 
 held that the evidence of authority was sufficient, (s) 
 
 So where a covert was the property of Sir John Acton, an infant, 
 and Lord Granville had married Sir John's mother, and had exercised 
 the right of killing and preserving game on Sir John Acton's property 
 for seven years, and had appointed a gamekeeper ; it was held that 
 this was sufficient prima facie evidence of his right under the 1 & 2 
 Will. 4, c. 32, s. 36, to demand and take game from a person found in 
 the covert, (f) 
 
 Being armed. — The ninth section creates two distinct offences, 
 namely, first, entering on land, one of the party being armed ; and, 
 secondly, being on the land armed, (w) 
 
 By sec. 9, if several are together, and any one of them is armed, 
 all of them are liable to be convicted, (v) But it was held, on the 
 repealed statute (57 Geo. 3, c. 90), that if several were out together, 
 and one had arms without the knowledge of the others, the others 
 were not liable to be convicted, (w) 
 
 Where an indictment for night-poaching charged eight prisoners 
 with ' being respectively armed with guns and other offensive weapons,' 
 and the jury found that two of the prisoners were armed with guns, 
 and the rest with bludgeons; it was objected, that a merely con- 
 structive arming was not sufficient under the 9 Geo. 4, c. 69, s. 9, and 
 that every prisoner not armed with a gun was entitled to be acquitted, 
 and that no reliance could be placed on the words, ' and other offen- 
 sive weapons,' for that the statute enumerating by name gun. cross- 
 bow, firearms, and bludgeons, and adding ' or any other offensive 
 weapons,' the indictment ought to have specified the offensive weapon 
 in any case, and particularly where the weapon was one of those 
 named in the statute ; Coleridge, J., overruled the objection, and upon 
 a case reserved, the judges were of opinion that the conviction was 
 right, (%) 
 
 The defendants had brought with them from a distance some large 
 heavy smooth stones, and had thrown them at a gamekeeper and his 
 assistants, whereby they had been struck and knocked down ; it was 
 left to the jury to say whether the stones had been brought by the 
 defendants to the place or found upon the spot ; whether they were 
 of such a description as to be capable of occasioning serious injury 
 to the person if used offensively ; and whether they were brought and 
 used for that purpose ; for that, if they were satisfied of the affirma- 
 tive of all those questions, these stones were offensive weapons 
 
 (s) R. v. Fielding, 2 C. & K. 621, Cress- persons may enter land with an innocent 
 
 well and Patteson, JJ. intent, and afterwards begin poaching. 
 
 (0 R. v. "Wall, 2 Cox, C. C. 288, Cole- {v) See R. v. Smith, MSS. Bayley, J., 
 
 ridge, J. and R. & R. 368, decided on the repealed 
 
 (u) Per Coleridge, J.. R. v. Kendrick, Act. 
 7 C. & P. 184, and MSS. C. S. G. See (w) R. v. Southern, MS. Bayley, J., and 
 
 also Davies v. R., 10 B. & C. 89, post, R. & R. 444. 
 
 p. 962. In R. v. Mellor, 2 D. P. C. 173, (x) R. v. Goodfellow, 1 Den. C. C. 81 ; 
 
 Taunton, J., held that the words, ' entering 1 C. & K. 724. R. v. Andrews, 1 Cox, C. C 
 
 and being,' in the 1 & 2 Will. 4, c. 32, s. 30, 144. S. P. See R. v. Davis, 8 C. & P. 759, 
 
 only constituted one offence ; sed. qn., for Patteson, J.
 
 chap, xl.] Going Armedin Night-Time to Destroy Game, Etc. 955 
 
 within the statute. (//) The prisoner had taken with him when 
 poaching a thick stick, large enough to be called a bludgeon, but 
 which, being lame, he was in the habit of using as a crutch ; it was 
 held to be a question for the jury whether he took it out with intent 
 to use it as an offensive weapon, or merely for the purpose to which 
 he usually applied it. (z) So where the only weapons proved to have 
 been used by the prisoners were sticks, and one, with which a game- 
 keeper had been knocked down, when produced, proved to be a very 
 small one, fairly answering the description of a common walking- 
 stick ; and on its being objected that this stick could not be consid- 
 ered an offensive weapon, it was answered that the use made of it by 
 the prisoner showed his intention, and the nature of the stick ; 
 Gurney, B., said, that if a man went out with a common walking- 
 stick, and there were circumstances to show that he intended to use 
 it for purposes of offence, it might perhaps be called an offensive 
 weapon within the statute ; but if he had it in the ordinary way, and 
 upon some unexpected attack or collision he was provoked to use it 
 in his own defence, it would be carrying the statute somewhat too 
 far to say it was an offensive weapon within the meaning of the 
 Act. («) Where the prisoners were found in a field with nets, hares, 
 and dogs, and putting the hares on sticks walked off, and the sticks 
 were about four feet and a half long, and about one and a half inch 
 in diameter, one of them being weighted with an iron ferule, and 
 another had a large knot at the thick end ; Eolfe, B., directed the 
 jury that if the prisoners brought the sticks merely and exclusively 
 for the purpose of carrying hares, then they were not armed within 
 the Act, though it was possible that the sticks might have been very 
 effectively used as offensive weapons in any affray with the keepers. 
 But if the jury thought that the prisoners took the sticks for the 
 double purpose of staking the nets or carrying away the game, and 
 also of attacking the keepers, if occasion should arise for such a pur- 
 pose, then they would be armed within the Act. (6) So where an 
 indictment on the 9 Geo. 4, c. 69, s. 9, alleged that the prisoners were 
 armed with bludgeons and other offensive weapons ; and it was proved 
 that all of them had sticks, and that one of them used his stick against a 
 keeper, E. v. Johnson (c) was cited to show that a stick used for offen- 
 sive purposes was an offensive weapon ; and Maule, J., observed that 
 in that case the stick was capable of being an offensive weapon ; but 
 here there was no evidence as to the size or length ; and left it to the 
 jury to determine whether this stick was an ' offensive weapon.' (r/) 
 
 It is a question for the jury in each case whether the defendants 
 were armed with offensive weapons, (e) 
 
 A keeper heard a gun fired in a wood, and called to his man to 
 watch ; the persons in the wood immediately abandoned their guns, 
 and had crept away two hundred yards from them, when the keeper 
 and his man discovered and seized them. A case was reserved upon 
 
 (//) R. v. Grice, 7 C. & P. 803. Ludlow, (6) R. v. Turner, 3 Cox, C. C. 304. 
 
 Serjt., after consulting Parke and Bolland, (c) R. & R. 492. 
 
 BB. (d) R. v. Merry, MSS. C. S. G. 2 Cox, 
 
 (s) R. v. Palmer, 1 M. & Rob. 70. C. C. 240. 
 Taunton, J. (c) R. v. Sutton, 13 Cox, C. C 648. R. 
 
 (a) R. v. Fry, 2 M. & Rob. 42. v. Williams, 14 Cox, C. C 59.
 
 956 Going Armed in Night- Time to Destroy Game, Etc. [book ii. 
 
 the question, whether they could be considered as found armed when 
 they had got to so great a distance from their guns before they were 
 discovered : and the judges (eleven) held that they were, and that 
 they were rightly convicted. (/) 
 
 Upon an indictment under the repealed statute, which charged the 
 prisoner in every count with having entered a wood, called Kingshoe 
 Spinney, it was proved that a gamekeeper heard nine reports, and saw 
 three flashes in the wood : the prisoner was not seen in the wood, but 
 was soon afterwards seen in a close which adjoined the wood : upon 
 this evidence it was left to the jury to say, whether the prisoner was 
 one of the party in the wood ; and they having found that he was, 
 the judges, upon a case reserved, held that, as there was evidence to 
 satisfy the jury that he had been in the wood armed, or was one of a 
 party who had been so, it was sufficient. (#) 
 
 Entering. — So it is not necessary under the 9 Geo. 4, c. 69, that the 
 defendants should be actually seen in the close laid in the indictment ; 
 it is sufficient if there be evidence to satisfy the jury that they were 
 in fact in the close for the purpose alleged. Thus where the pris- 
 oners had been seen in a close which lay between two woods, going 
 in a direction from one of the woods, in which shots had been pre- 
 viously heard, towards the other wood, it was left to the jury to say 
 whether they had not been in the wood in which the shots had been 
 heard, (h) 
 
 In E. v. Higgs, 10 Cox, C. C. 527, Willes, J., is reported to have 
 said, ' I have always held that if people are out at night in pursuit of 
 game, intending to take it when they can find any, they are in pur- 
 suit of game in every field that they pass over. If they are out with 
 a general intent to take game, I should say that was an intent to take 
 it in any field they may pass through where game may be found.' (i) 
 
 Where an accomplice proved that all the four defendants went to a 
 preserve called Norton Hill Wood for the purpose of killing pheasants, 
 and that all of them, except himself and Meadows, went into the wood, 
 they remaining outside ; and on the approach of the gamekeepers the 
 witness and Meadows went into the wood, and informed the others of 
 it, when they all ran away together; Alderson, B., said, 'the entering 
 on the land by one is to be considered as the entering of all, if the 
 others are at the place and assisting, — exactly in the same way that 
 would fix them in a case of burglary; there all are guilty, as well 
 those who actually enter the house as those who are close at hand on 
 the outside of it, waiting to watch or to carry off the property : it is 
 enough if all these persons were at the place, each of them acting his 
 part, and conducing to one common intent, although some only of the 
 party were bodily in the wood.' (/) And in another case, where one 
 or two out of four poachers were not actually in the wood laid 
 in the indictment, but were waiting outside to watch, the same 
 learned Judge said, 'If two persons were in the wood, and the 
 other two outside were of the same party, and there for the same 
 
 (/) K. v. Nash, MS. Bayley, J., and R. (i) See R. v. Davies, post, p. 960. 
 
 & R. 386, decided underthe repealed statute. (j ) P. v. Passey, 7 C. & P. 282. See R. 
 
 (g) R. v. Worker, R. & M. C. C. R. 165. v. Scotton, 5 Q. B. 493. Stacey v. Wkite- 
 
 (A) R. v. Capewell, 5 C. & P. 549. MSS. hurst, 18 C. B. (N. S.) 344. 
 
 C. S. G. Parke, B.
 
 chap, xl.] Going Armed in Night-Time to Destroy Game, Etc. 957 
 
 purpose, it would be an offence within the Act. Suppose that some 
 of the party were to go down one side of the hedge, and some 
 down the other, beating the same fence, that would be no offence 
 within the statute, according to li. v. Dowscll ; (k) and the same con- 
 sequence would follow if two went into the wood, and a number of 
 others surrounded the outside : surely the statute meant to include 
 such cases : I have a strong opinion on the point ; but out of respect 
 for my brother Patteson's opinion, if the question arises, I will reserve 
 the point.' (/) 
 
 Three defendants went out for the purpose of night-poaching: 
 Powell and Owen were seen setting nets in the hedge-row of the 
 yew tree piece, they being on the other side in a turnpike-road, and 
 Nickless went into another field ; Powell and Owen sent a dog into 
 the yew tree piece, which drove a hare into one of the nets ; it was 
 held that the case was not within the statute, as Nickless was inde- 
 pendently engaged in poaching in the field, he having left the others 
 poaching in the road, (m) 
 
 Upon an indictment against six prisoners for night-poaching in 
 Ratcliffe's field, it appeared that the prisoners were in company in 
 a lane adjoining the field in question setting nets between the ditch 
 and the hedge of the field to take game. One of them remained with 
 the nets, and the rest divided into two parties, and went round the 
 field. Three or four of the prisoners armed with bludgeons were 
 seen at one time beating in the field, with two dogs, for game. A 
 witness stated that he saw all the prisoners come out of the field, 
 and go together to the nets and take them up. The prisoners were 
 all associated and engaged in the common purpose of taking game in 
 the field in question. The prisoners were pursued and apprehended, 
 and four of them had sticks or bludgeons, and two of them drew 
 knives from their pockets, and threatened to stab the takers. It was 
 objected that the evidence did not sufficiently prove that all the 
 prisoners had been in the field, and that none could be properly 
 convicted who had not been in the field, and as those who had 
 been in the field could not be identified, all must be acquitted. 
 Wilde, C. J., did not think the evidence sufficiently certain that all 
 had been in the field, and directed the jury to consider whether all 
 the prisoners were at the time associated and engaged in the common 
 purpose of taking game by some of them going armed into the field, 
 and there beating for game, while others rendered their aid by remain- 
 ing outside the hedge ; and directed the jury that if they were satis- 
 fied that all the prisoners were so engaged, they were all liable to be 
 found guilty, although the witness could not identify which of the 
 prisoners entered the field. The case was left to the jury on the 
 assumption that some of the prisoners never entered the field. 
 The jury found the prisoners guilty, and upon a case reserved the 
 conviction was held right. The judges in this case did not think 
 it necessary to decide, whether it would be an offence within the 
 statute if a party of three or more together, one being armed, entered 
 
 (£) 6 C. & P. 398. tion was not reserved. See R. v. Andrews, 
 (?) R. v. Lockett, 7 C. & P. 300, Alder- 2 M. & Rob. 37, Gurney, B. 
 son, B. The jury having found that all the (m) R. v. Nickless, 8 C. & P. 757. Pat- 
 defendants had entered the wood, the ques- teson, J.
 
 958 Going Armed in Night-Time to Destroy Game, Etc. [book ii. 
 
 and were in land consisting of two or more enclosures in the same or 
 different occupations, because here the indictment made it essential to 
 prove that the offence was committed in the field occupied by Ratcliffe. 
 Five of the judges (n) were of opinion that to constitute the statut- 
 able misdemeanor the party must enter into and be bodily in the 
 close, and that if three were in the close and three out the latter 
 were not guilty ; and as the three who entered in this case could not 
 be ascertained, all were entitled to be acquitted. Seven of the 
 judges (o) thought that if three were in the close, one being armed, 
 they were guilty ; and that all others who were together with them 
 aiding and assisting were guilty of the same misdemeanor, though they 
 were not in the field.(^) 
 
 On an indictment on sec. 9, it appeared that three persons went 
 out together armed with guns in the night to destroy game, and were 
 together in one of the closes mentioned in the indictment, called Thir- 
 teen Acres, but not for the purpose of killing game in that close (for 
 there was none there), nor in one adjoining close by shooting from it. 
 They were passing along it to another place. One at least of the 
 three was in a close mentioned in the indictment, called The Spring, 
 which had pheasants in it, for the purpose of destroying game in that 
 close, but the whole three were not ; they were all, however, a"t that 
 time of the same company, and with that common purpose. The- 
 fourth count stated that the prisoners were in enclosed land occupied 
 by C. White. The Spring and the Thirteen Acres were both enclosed 
 and contiguous, being only separated by a fence, and both in the occu- 
 pation of C. White. There was a question whether this could make 
 any difference ; Parke, B., therefore respited the judgment, and reserved 
 the case for the opinion of ,the judges, and the following judgments 
 were given : Lord Campbell, C. J., ' The fourth count of the indict- 
 ment alleges that the prisoners were in enclosed land occupied by 
 ('. White; and on that count at all events I think the conviction 
 was right and ought to be affirmed. Some confusion seems to have 
 arisen on this matter from not attending sufficiently to the provisions 
 of the Act. It has been treated as though the word " close " occurred 
 in the Act, whereas it only specifies any land open or enclosed ; a 
 practice has consequently prevailed of naming a certain close in the 
 indictment, which is quite needless. It would certainly be requisite 
 to designate some land, and give it some description ; but if that land 
 comprehended fifty closes, and the offence was committed on any 
 part of such land, it would be within the statute. If therefore A., 
 B., and C. all belonged to one party with one common intent, A. 
 might be in Blackacre, B. in Whiteacre, and C. in Greenacre, and all 
 guilty under this statute.' Parke, B. : 'I am of the same opinion ; 
 though, at one time, I felt some doubt whether there could be a con- 
 viction on any count, I now think there may be on the fourth. If 
 the three are all of one party, one or more being armed with an 
 offensive weapon, and with the common object of destroying game in 
 
 (n) Parke, B., Patteson, J., Cresswell, J., 2 C. & K. 636. Mr. Greaves considers tins 
 
 Piatt, B., and Williams, J. case was wrongly decided. See note (s) to 
 
 (o) Denman, C. J. Wilde, C. J., Pollock, p. 657, and note (o) to p. 655, in 4th edition 
 
 C. B., Rolfe, B., Coltman, J., Wightman, of this work; and see R. v. May, 5 Cox, C 
 
 J., and Erie, J. C. 176, sed quaere. 
 (p) R. v. Whittaker, 1 Den. C. C. 310 ;
 
 chap. XL.] Going Armed in Night-Time to Destroy Game, Etc. 'Jij'J 
 
 the night, it is immaterial whether they are in the same or in differ- 
 ent closes or enclosures. It is necessary to describe the land correctly 
 in the indictment, for the purpose of identifying it ; but if the three 
 are on the land so described together under the circumstances I have 
 mentioned, it is sufficient to bring them within the statute, whether 
 the land be open or enclosed, or in one or more enclosures or in one 
 or several occupations. In Mr. Greaves' very able note (q) the reason- 
 ing appears to me to be founded on the assumption that the statute 
 provided only for the case of three being together in one and the same 
 piece of enclosed land, if the land was enclosed, or one and the same 
 piece of open land, if it was open, whereas the statute contains no 
 such provision.' Alderson, B. : ' The indictment charges the prisoners 
 with entering, &c, certain land, &c. ; it is, therefore, necessary to 
 describe the land, the entering which constitutes the offence charged. 
 The land may consist of different closes, and be in different occupa- 
 tions ; but whatever be the number of closes, or of occupations, the 
 land in question must be rightly described in the indictment.' (r) 
 
 As to what constitutes an entry within the meaning of this statute, 
 it has been held that if persons standing in a road hang nets on the 
 twigs of a hedge within a close, it is an entry into such close within 
 sec. 9. Some poachers standing in a lane spread their nets upon the 
 twigs of a hedge, which separated the lane from the close ; Alderson, 
 B., said, ' I shall tell the jury that if they are satisfied that, in effect- 
 ing a common purpose by all the defendants, the nets were hung 
 upon the twigs of the hedge so as to be within the field, it was an 
 entry. Lord Ellenborough, C. J., in Pickering v. Eudd, (s) stated 
 that he had once held that firing a gun loaded with shot into a field 
 was a breaking of the close, and I am o$ opinion that if these de- 
 fendants so placed the nets within the field it was an entry by 
 them all.' (t) Poachers were seen setting nets in the hedge-row of 
 a field, they being on the other side of the hedge in a turnpike- 
 road ; they also sent a dog into the field, which drove a hare into 
 one of the nets ; it was contended that the sending of the dog into 
 the field to drive the hares into the nets was, in point of law, an 
 entering into the field ; but Patteson, J., held that it was not. (u) 
 
 Where on an indictment on sec. 9 against three for entering 
 Mount Coppice, it appeared that two of them were seen together 
 running out of the coppice, and the third was almost immediately 
 afterwards seen coming out of it alone, having a gun and a pheasant, 
 and one of the others had a gun ; Maule, J., said, ' The three prisoners 
 
 (q) Note (o), vol. 1, p. 665, 4th edit. C. J., and Crompton, J., expressed similar 
 
 (>•) R. v. Uezzell, 2 Den. C. C. 274. Tal- opinions. Osbond v. Meadows, 12 C. B. 
 
 fourd, J., and Piatt, B., concurred. This (N. S.) 18. 
 
 case was not argued, 20 L. J. M. C. 192. [/) Athea's case, 2 Lewin, 191. 
 
 Mr. Greaves thinks this decision erroneous. (u) R. v. Nickless, 8 C. & P. 757, Patte- 
 
 See note (v), vol. 1, p. 659, 4th edition; son, J. Qucere, might not the poachers have 
 
 sed qucere. been convicted for being on the turnpike 
 
 (5) 1 Stark. N. P. C. 56. 4 Camp. 219. road in pursuit of game ? See ante, p. 947. 
 
 Lord Ellenborough, C. J., held that sending See R. v. Pratt, 4 E. & B. 860, per Lord 
 
 dogs into a plantation to beat for game was Campbell, C. J., and Crompton,. T., as to the 
 
 a trespass in the plantation. Lord Berkeley meaning of the words ' commit any trespass 
 
 v. Wathen, ex relatione Mr. Bloxsoine, who by entering or being upon any land,' in 1 & 
 
 was attornev in the cause. And see R. v. 2 Will. 4, c. 32, s. 30. 
 Pratt, 4 E. & B. 860, where Lord Campbell,
 
 960 Going Armed in Nirjht-Thne to Destroy Game, Etc. [book ii. 
 
 must be shown to have acted together and in conceit. It is not 
 sufficient to show that all were in the close at the same time; there 
 must be some proof of an association together. This is often done 
 by showing that the parties were seen together previously, the day 
 or evening before. There is no evidence of the kind here. It is, 
 however, a question for the jury ; ' and the case was left to the jury 
 accordingly. (v) 
 
 If the indictment state that the defendants entered into ascertain 
 close with intent, then and there, to kill game, it must be proved that 
 the defendants had the intent to kill game in the particular close 
 named, (w) On an indictment which charged that the prisoners 
 were in the Great Ground with intent then and there to take same, 
 it was proved that they were all in that close at 4 o'clock, a.m., when 
 they were all taking up nets, which were spread against a gate and 
 a gap in the fence ; they had dogs with them, and when they had 
 put the nets in a bag, they took up five hares which were lying dead 
 on the ground about seven yards from the nets ; it was contended 
 that there was not sufficient evidence to prove that they were in the 
 Great Ground with intent to take game there ; and the previous 
 cases were cited. Bolfe, B., ' The cases have certainly gone to that 
 length under this statute, and as the indictment charges an intent 
 then and there to take game, I shall, in deference to those cases,, 
 direct the jury that they must be satisfied the prisoners were in the 
 Cheat Ground with intent then — that is, at that hour — and there 
 that is, in that spot — to take game. For my own part, however, I 
 must say I should have been inclined to hold that the offence was 
 complete if a man were to be in one close and were to take game in 
 the next.' ' It was no matter here where the hares were taken - r 
 though they were taken in another close, the nets were spread in the 
 Great Ground, and the offence was complete, though no game was 
 taken there, if they were there with intent to do so.' (x) 
 
 A doubt is stated in the marginal note of E. v. Barham, (y) 
 whether it is necessary that the defendant should have such an in- 
 tent in the place in which he is found armed, unless it be so stated 
 in the indictment, and B. v. Worker (z) is referred to ; but in that 
 case, although the indictment was general, no such question arose. 
 Where it appeared that the prisoners were in Shutt Leasowe, a place 
 named in the indictment, and which adjoined Short Wood, and were 
 apparently going to the wood, Patteson, J., said, ' The intent was evi- 
 dently to kill game in the wood, into which none of the parties ever 
 got for that purpose ; it is true that they are charged with being 
 in Shutt Leasowe, but they had no intention of killing game there ; 
 they must be acquitted.' (ci) 
 
 Description of Locus in Quo. — The indictment must in some way 
 or other particularise the place ; for the defendant has a right to know 
 to what specific place the evidence is to be directed ; and stating 
 
 (v) R. v. Jones, 2 Cox, C. C. 185. (a) R. v. Davis, 8 C. & P. 759. It does 
 
 (w) R. v. Barham, P. & M. C. C. R. 151. not appear whether the indictment had the 
 
 R. v. Capewell, 5 C. & P. 549. R. v. Gainer, words ' then and there ' in it. In a case like 
 
 7 C. & P. 231. this, in general a jury might find an inten- 
 
 (x) P. v. Turner, 3 Cox, C. C. 304. tion to take game hy the prisoners before they 
 
 (?/) R. & M., C. C. P. 151. got into the wood. See P. v. Higgs, ante, 
 
 (:) R. & M., C. C. R. 165. p. 956.
 
 chap, xl.] Going Armed in Night- Time to Destroy Game, Etc. 961 
 
 that in the parish of A. the party entered into a certain close there, 
 was held not sufficient under the repealed statute, (h) But it has 
 been held sufficient to allege that the defendants entered certain land 
 in the occupation of a person named, without stating whether the land 
 was enclosed or not. (c) 
 
 An indictment alleged that the defendants entered a certain wood 
 called ' The Old Walk,' in the occupation of the Earl of Waldegrave : 
 it appeared that the wood had always been called ' The Long Walk,' 
 and upon a case reserved, the judges held the variance was fatal. (<l ) 
 Where an indictment described the land as ' Digmore Plantation of 
 and belonging to Sarah Harriett Williams,' and she was a widow gen- 
 erally known as Mrs. Hosier Williams, and Sarah Harriett Hosier 
 Williams, Hosier having been the name of a former husband, but she 
 would be quite as well known by the name of Sarah Harriett Wil- 
 liams, and could not be mistaken for any other person; it was held 
 that the description in the indictment was sufficient, (c) 
 
 Where an indictment for night-poaching described the land as 
 land ' of and belonging to J. W. Dod,' Patteson, J., held that it was 
 sufficient, as that meant that the land was in his occupation. (/) 
 
 An indictment alleged that the prisoners, ' late of the parish of 
 Foffants, otherwise called Fofants, otherwise called Fovant,' entered 
 ' certain land called Foffants, otherwise called Fofants, otherwise 
 called Fovant ; ' and it was objected that the indictment was un- 
 certain as to the parish and the wood, as they were both described 
 under these several names ; Coleridge, J., held that there was 
 nothing in the objection, as all the names were idem sonans. {g) 
 
 It would seem now that a variance between the allegation of the 
 occupation of land and the proof of the occupation will if not such as 
 to have misled the prisoners be amended at the trial, (h) 
 
 Indictment. — ■ The indictment must allege not only an entry by 
 night, but an arming by night. An indictment alleged that the de- 
 fendants did by night unlawfully enter divers closes and inclosed 
 lands, and were then and there in the said closes and lands, armed 
 with guns for the purpose of then and there taking and destroying 
 game; it was objected that the words 'then and there' did not mean 
 that the defendants were there by night, but only on the day, and at 
 the place aforesaid; and it was held that the indictment was bad. ' If 
 the words " by night " had occurred at the beginning of the sentence, 
 they might have governed the whole, or if they had been at the end 
 of the sentence they might have referred to the whole ; but here they 
 
 (b) R. v. Ridley, T. T. 1823. R. & R. needless. See R. v. Uezzell, 2 Den. C. C. 
 515. R. v. Crick, 5 C. & P. 508. Vaughan, R. 27 ; 20 L. J. M. C. 192. 
 
 B. R. v. Capewell, 5 C. & P. 549. Where (,1) R. v. Owen, R. & M., CO. R. 118, 
 the close is described in general terms, it decided upon the 57 Geo. 3, c. 90. The 
 may be prudent to apply for a particular of marginal note adds that, ' it is not necessary 
 the close in which the offence is intended to where the name of the owner or occupier of 
 be proved, which it is apprehended the Court the close is stated to state the name of the 
 would order to be delivered, as it is the usual close also.' The case itself, however, con- 
 course in all cases, where an indictment is so tains no such point. C. S. G. As to an 
 general as not to afford the defendant sum- amendment at the trial, see ante, p. 53. 
 cient information. See ante, pp. 540, 758. (e) R. v. Morris, 5 Cox, C. C. 205, Tal- 
 
 (c) R. v. Andrews, 2 M. & Rob. 37, fourd, J. 
 
 Gurney, B., S. P., R. v. Morris, 5 Cox, C. C. (/) R. v. Riley, 3 C. & K. 116. 
 
 205. A practice has prevailed of naming a (g) R. v. Andrews, 1 Cox, C. C. 144. 
 
 certain close in the indictment, which is (k) R. v. Sutton, 13 Cox, C. C. 648. 
 vol. i. — 61
 
 962 Going Armed in Night-Time to Destroy Game, Etc. [book ii. 
 
 are in the middle of the sentence, and are applied to a particular 
 branch of it, and cannot be extended to that which follows. The two 
 members of the sentence are distinct ; the first states the entry into 
 the closes by night, but does not state that the defendants were armed 
 or the intent with which they entered ; the second branch states, that 
 they were in the closes armed, for the purpose of destroying game, 
 but does not state that they were there by night. Neither of those 
 branches of the sentence contains all that is requisite to constitute 
 an offence within the statute, and the two being distinct the indict- 
 ment is bad.' (i) 
 
 In an indictment for night-poaching it is sufficient to allege that 
 the prisoners unlawfully entered, and it is not necessary to allege the 
 facts which made the entry unlawful. (J) And in such an indict- 
 ment it is sufficient to allege an intent to take game without specify- 
 ing the particular kind of game. (Je) 
 
 The indictment need not contain any specific allegation that the 
 defendants entered the close between the expiration of the first hour 
 after sunset and the beginning of the last hour before sunrise, the 
 period which by the twelfth section of the statute it is provided 
 shall be considered night. (7) 
 
 The indictment may contain counts not only on the ninth section 
 but also on the second for assaulting a gamekeeper authorised to 
 apprehend, for assaulting a gamekeeper in the execution of his 
 duty, and for a common assault, (???) and if there be any doubt as 
 to the number of persons not amounting to three, or the proof of 
 their being out in pursuit of game, it certainly would be prudent to 
 add such counts in all cases where an assault has been committed. 
 Where an indictment, after stating the entry into the land by 
 night, proceeded thus ; the defendants ' being then and there by 
 night as aforesaid armed with a gun ; ' and it was objected that 
 this averment was not sufficient, because 'then' meant only the 
 day and year aforesaid, and not the time of the entry ; Parke, B., 
 said, he would leave the defendants to their writ of error, but 
 advised the insertion of the words, ' at the time when they so 
 entered,' in such indictments in future, (n) Where an indictment 
 alleged, that the defendants did enter, and were in certain land, 
 they ' being then and there by night as aforesaid armed with guns, 
 and other offensive weapons,' and it was objected that the indict- 
 ment did not contain any sufficient allegation that the defendants 
 were armed when they entered the land; it was held that the 
 
 (i) Davies v. R., 10 B. & C. 89. The (fc) Ibid, 
 
 following objections were also taken, but not (/) Riley's case, 1 Lewin, 149, Parke, B. 
 
 adverted to by the Court : 1st, that the hour Pearson's case, ibid., 154, Gurney, B. 
 of the night ought to have been stated ; (m) R. v. Finucane, 5 C. & P. 551, and 
 
 2ndly, that it was not stated that the defend- MS. C. S. G. Parke, B. R. v. Simpson, 
 
 ants unlawfully were in the closes for the Stafford Spring Assizes, 1S30, Holland, B. 
 
 purpose of destroying game ; 3rdly, that it MS. C. S. G. 
 
 was not stated that the defendants were there (?») R. v. Wilks, 7 C. & P. 811. See 
 
 together for the purpose of destroying game ; Stead v. Poyer, 1 C. B. 782. It seems to be 
 
 and 4thly, that the indictment stated that sufficient to show that the defendants were 
 
 they entered ' divers closes ' without specify- on the land armed, &c, and that it is not 
 
 ing any in particular. But see Cureton v. necessary also to allege that they were armed 
 
 R.. rrntr, p. 950. when they entered on the land. 
 
 0') R- v. May, 5 Cox, C. C. 176, Patte- 
 son, J.
 
 chap, xl.] Going Armed in Night-Time to Destroy Game, Etc. 963 
 
 indictment was sufficient, as all the requisites of the statute had been 
 complied with, (o) Where there was one indictment for shooting 
 at a gamekeeper with intent to murder him, and another indict- 
 ment for night-poaching, both founded on the same transaction, it 
 was held that the prosecutor was not bound to elect which he 
 would proceed upon, as the offences were quite distinct, and one 
 of them could not possibly merge in the other, (p) 
 
 Upon an indictment for night-poaching the case was proved, 
 except that it was shown that the land was the freehold of Spode, 
 and in the occupation of a tenant, and it was contended that in 
 order to show that the prisoner was ' unlawfully ' there, it must be 
 shown by direct evidence that he had not the permission either 
 of the tenant or landlord ; the jury found the prisoner guilty, 
 and unless the particular proof suggested was necessary, there 
 was abundant evidence, not merely that the prisoner and those 
 with him were on the land, but also in their conduct that they 
 were unlawfully there ; and upon a case reserved, it was held that 
 the conviction was right. If persons are found at night armed 
 and using violence to keepers, it cannot be necessary to call the 
 tenant of the land or the owner to prove they were not there by 
 permission. (c£) 
 
 (6) R. v. Kendrick, 7 C. & P. 184, and (p) R. v. Handley, 5 C. & P. 565, 
 
 MS. C. S. G. Coleridge, J. Parke, B. 
 
 (q) R. v. Wood, D. & B. C. C. 1.
 
 APPENDIX. 
 
 DECISIONS ON REPEALED STATUTES RELATING TO 
 CONSPIRACY. 
 
 Right of Workmen to Agree as to Rate of Wages In his charge to 
 
 the grand jury at the Stafford Special Commission, 1843, Tindal, C. J., 
 said, 'The first observation that arises is that if the workmen of the 
 several collieries and manufactories, who complained that the wages 
 which they received were inadequate to the value of their services, had 
 assembled themselves peaceably together for the purpose of consulting 
 upon and determining the rate of wages or prices which the persons 
 present at the meeting should require for their work, and had entered 
 into an agreement amongst themselves for the purpose of fixing such 
 rate, they would have done no more than the law allowed. A combina- 
 tion for that purpose and to that extent (if indeed it can be called by 
 that name) is no more than is recognised as legal by the 6 Geo. 4, 
 c. 129 ; by which statute also exactly the same right of combination, 
 to the same extent and no further, is given to the masters when met 
 together, if tbey are of opinion the rate of wages is too high. In the 
 case supposed — that is, a dispute between the masters and the work- 
 men as to the proper amount of wages to be given — it was probably 
 thought by the legislature that if the workmen on the one part refused 
 to work, or the masters on the other refused to employ, as such a 
 state of things could not continue long, it might fairly be expected 
 that the party must ultimately give way, wliose pretensions were not 
 founded in reason and justice, — the masters if they offered too little, 
 the workmen if they demanded too much. But, unfortunately for them- 
 selves and others, those who were discontented did not rest here. Not 
 satisfied with the exercise of their own right to withhold their own 
 labour, if thejr were discontented with the price they received for it, 
 they assumed the power of interfering with the right which others 
 possessed, of exercising their discretion upon the same point; and ac- 
 cordingly you will have numerous cases laid before you in which large 
 bodies of dissatisfied workmen interfered by personal violence and by 
 threats and intimidation, to compel others, who were perfectly willing 
 to continue to labour in their callings at the rate of wages then paid, 
 to desist from their work, to leave the mine or manufactory, and against 
 their own will to add themselves to the numbers of the discontented 
 party; than which a more glaring act of tyranny and despotism by one 
 set of men over their fellows cannot be conceived. If there is one right 
 which, beyond all others, the labourer ought to be able to call his own, it is 
 the right of the exertion of his own personal strength and skill, in the 
 full enjoyment of his own free will, altogether unshackled by the control 
 or dictates of his fellow-workmen; yet strange to say, this A r ery right. 
 which the discontented workman claims for himself to the fullest extent, 
 he does, bj T a blind perversity and unaccountable selfishness, entirely 
 refuse to his fellows who differ in opinion from himself. It is un-
 
 966 Conspiracy. [appendix. 
 
 necessarj 7 to say, that a course of proceeding so entirely unreasonable 
 in itself, so injurious to society, so detrimental to the interest of trade, 
 and so oppressive against the rights of the poor man, must be a gross 
 and flagrant violation of the law, and must be put down, when the 
 guilt is established, by a proper measure of punishment.' (a) 
 
 Right of Masters to Agree as to Rate of "Wages. — The defendants 
 were indicted for a conspiracy to impoverish partners in their trade and 
 business as ironfounders, and for a conspiracy to prevent them from 
 taking into their service journeymen and apprentices, &c. ; Rolfe, B., 
 / told the jury that, ' Those who are to employ labour may meet and say, 
 / "We will not give more than such and such a rate, or we will stipu- 
 / late for such and such number of hours' work; we will make, in short, 
 I regulations beneficial to ourselves as employers, and we agree that we 
 will not take any workmen that require more." On the other hand, 
 ) the workmen may meet and say, "We will not work for less than such 
 and such sums, and if anybody thinks to employ us on low wages we 
 will agree we will not work for them, and we agree to form a fund and 
 support one another until we get them to come to proper terms. "(6) That 
 being the law, the market in that, as in all other things, will find its 
 own level, and what the value of that labour is will be found out by 
 there being either a redundancy of hands out of work, or a redundancy 
 of capital seeking for labour; and that is the policy of the law. jBut 
 if any illegal means be taken, the principle of the common law steps 
 in, and says that if any persons conspire and combine together to effect 
 this illegal object, an object that is of itself illegal, any such conspiracy 
 to effect the illegal object is itself criminal.' And with reference to 
 the expressions used by the defendants, Rolfe, B., said, 'A great deal 
 may be said as to the precise words used; what I think you should con- 
 sider is not so much the very words, as whether the fair result of them 
 was to intimate to the person to whom they were addressed, that some 
 / bodily harm would happen to him if he persevered in his intention 
 of working at the prosecutors', when they only said, "It will be the_ 
 worse for you" and "You will regret it," and so on. There are no 
 particular words necessary to be used if the fair inference is that which 
 nas been taken, that it was to prevent the other party from perse- 
 vering in the intention of working for the prosecutors, and unques- 
 tionably that would bring home the charge of intimidation.' And with 
 yv\j respect to persuasion to leave their service, Rolfe, B., said, 'It is doubt- 
 A-v V less lawful for people to agree among themselves not to work except 
 \r upon certain terms; that being so, I am not aware of any illegality 
 
 in their peaceably trying to persuade others to adopt the same view. 
 It is lawful for half a dozen people to agree together and say, "We 
 will not work unless the prosecutors raise our wages." So it is per- 
 fectly reasonable to say to a third man, "You had better do that too," 
 if they do not use threats, to deter him from doing it; but it is not 
 necessary to use actual threats, if the language used is such as tends 
 to convey the impression of intimidation.' And the learned Baron 
 afterwards added, ' My opinion is that, if there was no other object 
 than to persuade people that it was their interest not to work except 
 for certain wages, and not to work under certain regulations complied 
 with in a peaceable way, it was not illegal.' (c) 
 
 (a) C. & M. 662, note. Parke, B. and Cleasby, B. This is so now, see ss. 3 & 7 
 
 Rolfe, B. were present. See R. v. Byker- of 38 & 39 Vic. c. 86. Ante. pp. 546, 547. 
 dyke, 1 M. & Rob. 179. (c) R. v. Selsby, 5 Cox, C. C. 495. note. 
 
 (6) See R. v. Shepherd, 11 Cox, C. C. Sp. As. 1847. See sec. 7, ante, p. 547. 
 325 ; R. v. Hibbert, 13 Cox, C. C. 82.
 
 appendix.] Cases on Repealed Statutes. 967 
 
 Workmen Compelling Others to Quit Employment. — On au indict- 
 ment for a combination by workmen contrary to the 6 Geo. 4, c. 129, it 
 appeared that the defendants were members of a society called the Philan- 
 thropic Society of Coopers. The society had an acting member in 
 every cooper's yard. C. Evans, a member of the society, was working in 
 Mr. Turner's yard ; but, with Ins permission, he did four days' work 
 at the steam mills of other masters, where steam machinery was em- 
 ployed for making casks. When this came to the knowledge of the 
 society, they inflicted a fine of £10, payable by instalments, on Evans for 
 working in a yard where steam machinery was employed. Evans refused 
 to pay, and the other men in Mr. Turner's yard then left their work, and 
 refused to return whilst Evans was employed. Evans was, in conse- 
 quence, thrown out of work. Each man who left Turner's yard on _accoun t 
 of Evans was paid 9s. for his loss of time ~by the committee. The fine~ 
 was imposed in accordance with the rules of the society. Lord Camp-' 
 bell, C. J., was of opinion that the Philanthropic Society was, according 
 to its rules, a lawful institution ; but it could not be permitted that, 
 under the guise of its laudable objects, the members should enter into a 
 combination to injure others. Ity law every man's labour was his own, 
 and he might make what bargain he liked for his own employment ; but 
 the men must not associate themselves to do that which might prejudice 
 another man. The men may take care not to enter into engagements of 
 which they do not approve; but they must not prevent another from 
 doing so. It was clear the defendants unlawfull}' imposed a fine on 
 Evans, and proceeded bv unlawful means to induce him to pay that 
 fine, (d) 
 
 Molesting and Obstructing Workmen and Employers. — The first 
 count stated that R. P. and G. H. P. carried on trade as manufacturers 
 of japanned and tin wares, and that divers persons were workmen, and 
 hired and employed by and worked as workmen for the said R. P. 
 and G. H. P. in their said trade, and that the prisoners unlawfully con- 
 spired, &c, by unlawfully molesting the workmen so hired and employed 
 by and working for the said R. P. and G. H. P. in their said trade, 
 to force and endeavour to force the said workmen so hired and em- 
 ployed by and working for .the said R. P. and G. H. P., in their said 
 trade, to depart from their said hiring, employment and work. The 
 second count was like the first, but stated the means to be by unlawfully 
 using threats to the said workmen. The third was like the preceding, 
 but stated the means to be by unlawfully intimidating the said workmen. 
 The fourth, fifth, and sixth were similarly framed for conspiring to force 
 individual workmen to depart from their hiring by the means stated in 
 the first, second, and third counts respectively. The seventh count, like 
 the first, stated that divers persons were workmen, and were hired and 
 employed by and worked for R. P. and G. H. P. in their said trade, and 
 that the prisoners unlawfully conspired, &c, by unlawfully molesting the 
 said R. P. and G. H. P., to force and endeavour to force the said work- 
 men so hired, &c, to depart from their said hiring, &c. The eighth 
 count was like the seventh, but stated the means to be by unlawfully 
 obstructing the said R. P. and G. H. P., so carrying on their said trade, 
 and the said workmen so hired, &c, by and working for the said R. P. 
 and G. H. P. in their said trade. The ninth count stated that R. P. and 
 G. H. P. carried on trade, &c, and that the prisoners unlawfully con- 
 spired, &c, by molesting the said R. P. and G. H. P., to force and 
 endeavour to force them to make an alteration in the mode of carrying on 
 their said trade. The tenth count stated that workmen were hired, &c, 
 
 (d) R. v. Hewitt, 5 Cox, C. C. 162, Feb. 1851.
 
 968 Conspiracy. [appendix. 
 
 by R. F. and G. H. P., as in the former counts, and that the prisoners 
 unlawfully conspired by obstructing the said R. P. and G. H. P., and by 
 inducing and persuading the said workmen in the hiring and employment 
 of the said It. P. and G. H. P. to leave their hiring, employment, and 
 work, to force and endeavour to force the said R. P. and G. H. P. to 
 make an alteration in the mode of carrying on their said trade. The 
 eleventh count stated that R. P. and G. H. P. carried on trade, &c, and 
 that divers persons were being hired and employed as workmen for the 
 sail! R. P. and G. H. P. in their said trade; and that the prisoners un- 
 lawfully conspired by molesting and obstructing such workmen as afore- 
 said as might be willing to be hired and employed by the said R. P. and 
 G. H. P. in their said trade, and who were not then hired and employed 
 by the said R. P. and G. H. P., or by any other person, to prevent and 
 endeavour to prevent the said workmen so willing to be employed, &c, 
 from hiring themselves to, and from accepting work and employment from 
 the said R. P. and G. H. P. in their said trade. The twelfth count was 
 like the eleventh, but stated the means to be by unlawfully using threats 
 and intimidation to such workmen who might be willing, &c. The 
 thirteenth (e) count stated that R. P. and G. H. P. carried on trade, 
 &c, and that divers persons, being artificers, had contracted with the 
 said R. P. and G. H. P. to serve them as artificers in their said trade 
 for certain times and periods, &c, and had entered into the service of 
 the said R. P. and G. H. P. as such manufacturers. And that the 
 prisoners unlawfully conspired, &c, by divers subtle means and devices, 
 to induce and persuade such artificers so having contracted, &c, and 
 so having entered into the service, &c, unlawfully to absent them- 
 selves from the said service of the said R. P. and G. H. P., without 
 the consent of either of them, before the respective terms of the same 
 contracts were completed. The fourteenth count stated that W. H., 
 being an artificer, had contracted, &c, for a period specified, and had 
 entered into the service, and that the prisoners conspired, &c, by divers 
 subtle means and devices, and illegal acts and practices, and by intoxi- 
 cating the said W. H., to induce and persuade the said W. H., so having 
 contracted, &c, and so having entered into the said service, &c, unlaw- 
 fully to absent himself from the service of the said R. P. and G. H. P., 
 without the consent of either of them before the term of the said contract 
 was completed. The fifteenth count was like the fourteenth, but related 
 to one T. G. The eighteenth count stated that the prisoners, intending 
 to injure and oppress the said R. P. and G. H. P. in their trade as manu- 
 facturers, &c, conspired, &c, by divers subtle means and devices, and by 
 intoxicating and thereby rendering senseless the workmen of the said 
 R. P. and G. H. P. in their trade, to convey to a distance and carry 
 away the said workmen, and thereby to prevent the said workmen from 
 continuing to work for the said R. P. and G. H. P. in their said trade. 
 The twentieth count stated that the prisoners conspired by divers subtle 
 means and devices, and by illegal acts and practices, and by molesting 
 and intoxicating the workmen in the employment of the said R. P. and 
 G. EL P., and by inducing the workmen to depart from the said employ- 
 ment and to break their contracts with the said R. P. and G. H. P., to 
 force and compel the said R. P. and G. H. P. to alter, and thereby 
 increase, the amount of wages which the said R. P. and G. H. P. then 
 were in the habit of paying to the workmen in their employment. Each 
 count concluded 'to the great damage of the said R. P. and G. H. P.,' &c. 
 
 (e) This and the two following counts unlawfully absent themselves from their 
 were framed with reference to the 4 Geo. 4, service before the end of the term for which 
 c. 34, s. 3, which related to workmen who they have been engaged.
 
 appendix.] Cases on Repealed Statutes. 9G9 
 
 In arrest of judgment it was urged that the first ten counts were too 
 vague and the words 'molest,' 'threats,' 'intimidating,' and 'obstruct- 
 ing,' were objected to as not necessarily importing anything unlawful. 
 To the eleventh and twelfth counts it was further objected thai they ought 
 to have alleged that the prisoners knew of the intended hiring, and that 
 the names of the workmen ought to have been .stated. That to follow the 
 words of a statute was only sufficient where the indictment was on the 
 statute, and here the charge was at common law; and that the offences cre- 
 ated by the G Geo. 4, c. 129, s. 3, depended entirely upon the means used, and 
 if those were not properly described, there was no sufficient charge of con- 
 spiracy to violate the statute. To the thirteenth, fourteenth, and fifteenth 
 counts it was objected that they ought to have stated what the contracts 
 were, and that the absence was without lawful excuse. That conspiring 
 merely to 'induce and persuade,' as alleged in the tenth count, was no 
 offence, even if a contract appeared which made it unlawful not to serve. 
 But the Court of Queen's Bench held that the counts were wholly unex- 
 ceptionable. Lord Campbell, C. J., ' It is objected that some counts do 
 not disclose the nature of the molestation or intimidation by which the 
 conspiracy was to take effect ; but this is quite unnecessary. The words of 
 the legislature are used ; the terms in question have a meaning stamped 
 upon them by the 6 Geo. 4, c. 129, s. 3, and we must take it that they 
 are used here in that sense. And they are not employed, as describing 
 the substantive offence for which the indictment is preferred ; that 
 offence consists in the conspiracy, which is a misdemeanor at common 
 law.' (/) 
 
 Combinations of Workmen and of Masters for Mutual Advantage. — 
 In summing up this case to the jury, Erie. J., said, ' The law is clear 
 that workmen have a right to combine for their own protection, and to 
 obtain such wages as they choose to agree to demand. I say nothing at 
 present as to the legality of other persons not workmen combining with 
 them to assist in that purpose. As far as I know, there is no objection, 
 in point of law, to it ; and it is not necessary to go into that matter ; but 
 I consider the law to be clear so far only as while the purpose of the com- 
 bination is to obtain a benefit for the parties who combine ; a benefit 
 which by law they can claim. I make that remark, because a combina- 
 tion for the purpose of injuring another is a combination of a different 
 nature, directed personally against the party to be injured ; and the law 
 allowing them to combine for the purpose of obtaining a lawful benefit to 
 themselves, gives no sanction to combinations, which have for their 
 immediate purpose the hurt of another. The rights of workmen are con- 
 
 (/) R. v. Rowlands, 17 Q.B. 671. 2 Den. agreement with them was completed. The 
 
 C. C. 364. Sum. Ass. 1851. The other nineteenth count stated that the prisoners 
 
 objections were not noticed. The sixteenth conspired, &c, unlawfully to intimidate, 
 
 count stated that the prisoners conspired prejudice, and oppress R. P. and G. H. P. 
 
 unlawfully to intimidate, prejudice, and in their trade of manufacturers of japanned 
 
 oppress R. P. and G. H. P. in their trade as and tin wares, and to entice and seduce away 
 
 manufacturers of japanned and tin wares, the workmen of the said R. P. and G. H. P. 
 
 and to prevent the workmen of the said from their employment, and thereby to in- 
 
 R. P. and G. H. P. from continuing to work jure and oppress the said R. P. and G. H. P. 
 
 for them in their said trade. The seventeenth in their said trade: and Lord Campbell, 
 
 count stated that the prisoners conspired, C. J., said, ' We all agree in thinking that 
 
 &c, by divers subtle means and devices, and the sixteenth, seventeenth, and nineteenth 
 
 wicked arts and practices, to injure and counts are open to objection, as being too 
 
 oppress the said R. P. and G. H. P. in their vague. We give no final opinion ; but on 
 
 trade of manufacturers of tin and japanned these counts there will be a rule nisi to arrest 
 
 wares, and to induce the workmen of the the judgment, unless a nolle prosequi be 
 
 said R. P. and G. H. P. to depart from their entered ; ' which the counsel for the crown 
 
 hiring, employment, and work with the said consented to enter. 
 R. P. and G. H. P. before the period of their
 
 970 Conspiracy. [appendix. 
 
 ceded ; but the exercise of free-will and freedom of action within tin- 
 limits of the law is also secured equally to the masters. The intention of 
 the law is at present to allow either of them to follow the dictates of their 
 own will with respect to their own actions and their own property ; and 
 either, I believe, has a right to study to promote his own advantage or to 
 combine with others to promote their mutual advantage.' Erie, J., then 
 said that in this case there had been a combination to force the prosecu- 
 tors to agree to a uniform book of prices ; and, after adverting to the 
 different counts, added, ' If you should be of opinion that a combination 
 existed for the purpose of obstructing the prosecutors in carrying on their 
 business, and forcing them to consent to this book of prices, and, in pur- 
 suance of that concert, they persuaded the free men, and gave money to 
 the free men, to leave the employ of the prosecutors, the purpose being to 
 obstruct them in their manufacture, and to injure them in their business, 
 and so to force their consent, with no other result to the parties combin- 
 ing than gratifying ill-will, I am of opinion that that would also be a 
 violation of the law, and would warrant a conviction on the counts 
 directed against that form of offence.' It was contended that this lan- 
 guage led the jury to suppose that, although the combination were for a 
 legitimate object, yet, if the means to be used would have the effect of 
 obstructing the prosecutors in carrying on their business, it was an indict- 
 able conspiracy ; whereas, if the object of the workmen was to enforce 
 their own rights, they were justified in doing so, though the effect were 
 an obstruction of the prosecutors' business. But Erie, J., said that his 
 words had no such meaning, and the Court of Queen's Bench saw no 
 objection to the summing up. (jj) 
 
 Combinations to Raise Rate of Wages. — And on an indictment con- 
 taining the same counts as the preceding case at the same assizes, 
 Erie, J., told the jury 'that with respect to the law relating to the 
 combinations of woi'kmen, nothing can be more clearly established in 
 point of law than that workmen are at liberty, while they are perfectly 
 free from engagement, and have the option of entering into employ or 
 not; nothing can be more clear than that they have a right to agree 
 among themselves to say, "We will not go into any employ unless we 
 can get a certain rate of wages." But I think it would be most dan- 
 gerous if that proposition were carried at all wider than the terms in 
 which I put it; that is to say, where workmen are perfectly free from 
 engagement, having the option whether they will hire themselves or not, 
 each man for himself may say, " I will go into no employ unless I can 
 get a certain rate of wages," and all of them, if they choose, maj r say, 
 "We will agree with one another that in our trade, as able-bodied work- 
 men, we will not take employ unless the employers agree to give a cer- 
 tain rate of wages." But I think it would be most dangerous indeed if 
 that rule of law, so in favour of workmen protecting their own interests, 
 were at all construed to extend to that which is charged in this indict- 
 ment; that is to say, to suppose that workmen, who think that a certain 
 rate of wages ought to be obtained, have a right to combine together to 
 induce men, already in the employ of other masters (to leave their ser- 
 vice), for the purpose of compelling those masters to raise their wages/ 
 . . . ' I take it for granted that if a manufacturer has got a manufac- 
 tory, and his capital embarked in it for the purpose of producing articles 
 in that manufactory, if persons conspire together to take away all his 
 workmen, that would necessarily be an obstruction to him; that would 
 necessarily be a molesting of him in his manufactory,' and that would 
 certainly be a conspiracy for an unlawful purpose, (h) 'The workmen 
 
 {g) Ibid. p. 686, note (6). The summing up (h) R. v. Duffield, 5 Cox, C. C. 404. 
 
 is given at length in 5 Cox, C. C 460, et seq.
 
 appendix.] Cases on Repealed Statutes. 971 
 
 have a right to agree that none of those who make the agreement will go 
 into employ unless they are to receive a certain rate of wages; but with 
 respect to their fellow workmen, they have no right at all to agree to 
 molest or intimidate or annoy other workmen in the same line of business, 
 who refuse to enter into the agreement, and who choose to go and work 
 for the employers at a lower rate of wages than that which the parties 
 agree to rely on.' < Let those without engagements agree to any terms 
 they please, but they have no right to interfere with other workmen, who 
 do not come into the agreement, and who are, of course, at liberty to go 
 to any employers on any terms they choose.' (i) 
 
 Threats The prosecutor was a builder, and employed a large number of 
 
 men. In 1859 there had been a strike of workmen in the building trade, 
 and the prosecutor determined not to employ any men who declined to work 
 under a certain declaration. In May, 1860, the prosecutor had some men 
 in his employ who were working under this declaration, and the defend- 
 ant and two others brought a paper signed by himself and about thirty 
 other workmen, which informed the prosecutor that < unless the men, who 
 are working under the declaration in his shop, are discharged, and we 
 have a definite answer by dinner-time to that effect, we cease work imme- 
 diately.' The defendant, in reply to questions put by the prosecutor, 
 said they had no fault to find with him, his foremen or clerks, or with the 
 wages the defendant received; but, being asked what he wanted, he said, 
 'You must discharge those two men who are working under the declara- 
 tion, and if you do not we will leave work.' The prosecutor refused to be 
 dictated to, and the defendant and all the men who had signed the paper 
 left his employment; and it was held that the defendant was rightly con- 
 victed, under the 6 Geo. 4, c. 129, s. 3, of unlawfully by threats endeav- 
 ouring to force the prosecutor to limit the description of his workmen, (j) 
 
 So where one Longman was a member of the United Boiler Makers 
 and Iron Shipbuilders' Society, and in the employ of Messrs. Kruger; 
 and they had ordered one Norfolk, who was not a club-man, to work on 
 boilers by bending angle iron, and he did so. Longman attended a meet- 
 ing of the club, summoned ' to stop an encroachment,' and found the 
 
 (i) Per Erie, J., ibid. See Hilton v. workmen as obnoxious, have a perfect right 
 
 Eckersley, 6 E. & B. 47, where there was to put the same alternative to their employer, 
 
 much discussion as to rights of masters and But if the men go further than that, and 
 
 workmen to combine to protect their inter- seek to coerce the master by the threat of 
 
 ests ; and Lord Campbell, C. J., after citing what is likely to operate to his injury, that 
 
 the dictum of Grose, J., in R. v. Mawbey, comes within the meaning of the Act. In 
 
 6 T. R. 636, there said, ' I cannot bring the present case, it was not one man who 
 
 myself to believe, without authority much went to the employer, but several, who 
 
 more cogent, that if two workmen, who sin- adopted the same course ; not with the view 
 
 cerely believe their wages to be inadequate, of giving hirn an opportunity of exercising 
 
 should meet and agree that they would not his discretion, but, by threatening to leave 
 
 work unless their wages were raised, without his employ, to compel and coerce him to 
 
 designing or contemplating violence, or any discharge the obnoxious persons.' Hill, J., 
 
 illegal means for gaining their object, they 'The word "threat" in the Act must be 
 
 would be guilty of a misdemeanor.' See construed with those which precede and fol- 
 
 Hornby v. Close, 36 L. J. M. 0. 43 ; Farrar low. It may be a threat to do an illegal act ; 
 
 v. Close, 38 L. J. M. C. 132. and the question is, whether the act threat- 
 
 (j) Walsby v. An ley, 3 Law T. 666, A. d. ened to be done is an illegal act. A man has 
 
 1861. Cockburn, C. J., ' Every workman a perfect right to go to an employer, and say 
 
 in the service of an employer is entitled to all that was said in this case, or several might 
 
 the full exercise of his discretion as to do it ; but if they acted in combination, not 
 
 whether he will continue in that employ- honestly and independently, but for the pur- 
 
 ment, so long as he is not bound by any pose of coercing the master, they are guilty 
 
 contract, and to give his employer the alter- of a conspiracy at common law. The com- 
 
 native of either losing his services, or bination, and the attempt to carry it out, 
 
 discharging obnoxious persons with whom were illegal.' See R. v. Druitt, 10 Cox, C. C. 
 
 he might not choose to work ; and more than 592. 
 that, several men, who might consider other
 
 972 Conspiracy. [appendix. 
 
 encroachment was 'Norfolk's working at the angle iron;' a resolution 
 was passed that the men belonging to the society should not be allowed 
 to work at Messrs. Kruger's if Norfolk was allowed to work at angle 
 iron work. O'Neill, the chairman of the meeting, told Longman and 
 others that, being club-men working at Kruger's yard, they would have 
 to come out if Norfolk was not knocked off angle work. A deputation 
 from the club waited on Messrs. Kruger, but produced no effect. Long- 
 man was then summoned to another meeting, at which a report of the 
 deputation was made, and Longman was asked by O'Neill, from the 
 chair, whether he intended to remain an honourable member, and leave 
 the shop (Kruger's), or stay in the shop, and be despised by the club, 
 and have his name sent round all over the country in the report, and be 
 put to all sort of unpleasantness. Longman told O'Neill that if there 
 were anything to undergo, he would bear the consequences. He had 
 further time granted him for consideration, but ultimately refused to 
 leave his employment. It was held, chiefly on the authority of the pre- 
 ceding case, that O'Neill was guilty of having unlawfully, by threats 
 and intimidation, endeavoured to force Longman to depart from his ser- 
 vice. What was said would operate most formidably on the mind of a 
 person who felt that he would be deprived of all the benefit he would 
 otherwise obtain from the club, and be dismissed from it, and put to all 
 sorts of unpleasantness. It was difficult to conceive what sort of threat 
 could be intended to come within the meaning of the Act short of 
 personal violence, if this were not such a threat. (Iz) 
 
 The respondent, a master bricklayer, with his men, were employed 
 on a building, and the appellant, Barrow, and another man (O'Hare), 
 were about thirty yards off. They spoke to two of his men who immedi- 
 ately afterwards took away their tools, and ceased to work for respondent. 
 This they were at liberty to do by their agreement. The respondent 
 asked Barrow and 0' Hare why the men had been stopped, and they told 
 him, ' He must know it was on account of his apprentices.' At that 
 time the respondent had four apprentices. Two or three weeks afterwards 
 respondent wrote to Barrow, as the Secretary of the United Order of 
 Bricklayers' Association, asking to be informed of the reason that his 
 men were taken away from him, and stating that he had heard that it 
 was because he employed too many apprentices, and that he should like 
 to know what the society required him to do. In reply, a letter was sent 
 in Barrow's handwriting in these terms: 'At a summoned meeting of 
 the United Order of Bricklayers it was proposed, seconded, and carried 
 unanimously, that no society bricklayer will work for Thomas Bowron 
 until such time as he parts with some of his apprentices; namely, he 
 will be allowed two ; and when his oldest apprentice arrives to his last 
 year of servitude he will be allowed a third, and until then there will be 
 no society bricklayer work for him; and further, there will be so much 
 expenses to pay as well before any society bricklayer will work for the 
 said Thomas Bowron.' The appellant Wood acted as chairman and Bar- 
 row as secretary at the meeting at which the letter was written. Shortly 
 after the meeting a demand of 181. was made by Wood who stated that 
 that sum must be paid before they would allow any men to work for the 
 respondent. Held, that the above facts were not sufficient to sustain 
 the conviction of the appellant under 6 Geo. 4, c. 129, s. 3 (now repealed), 
 for unlawfully, by using certain threats, forcing, or endeavouring to force, 
 the respondent to limit the number of his apprentices. (I) 
 
 (k) O'Neill v. Longman, 9 Cox, C. C. (Z) Wood v. Bowron, 10 Cox, C. C. 344, 
 
 ^O, A. d. 1863. 4 B. & S. 376. O'Neill et per Lush, J., 'I am also of the same 
 v. Kruger, 4 B. & S. 389. opinion, that there is no evidence to sustain
 
 appendix.] Cases on Repealed Statutes. 973 
 
 By sect. 3 of the 6 Geo. 4. c. 129 (now repealed,) it is enacted that 
 if any person shall, by threats or intimidation, force, or endeavour to 
 force, any manufacturer, or person carrying on any trade or business, 
 to limit the number of his apprentices, or the number or description of 
 his journeymen, workmen, or servants, he shall, being convicted thereof, 
 be imprisoned, &c. 
 
 The appellant, secretary of a lodge of the General Union of Carpen- 
 ters and Joiners, delivered to the respondent, a builder, the following 
 notice : — 
 
 ' Mr. William Kitch, 
 
 ' Sir, — I am requested by the committee of Carpenters and 
 Joiners to give the men in your employ notice to come out on strike 
 against James Jordan, unless he become a member of the above society, 
 not being any way disrespectful to you or him, but being compelled by 
 the Union and laws. This notice will be carried out after the 27th inst., 
 unless settled in accordance with the Society's laws. I remain, yours 
 most respectfully, Thomas Skinner, Secretary. ' 
 
 Held, that the appellant had thereby brought himself within the opera- 
 tion of the 3rd section as above mentioned, (m) 
 
 the conviction. After the decisions that have Whatever its quality might be at common 
 
 been given upon this statute, it is too late to law, certainly it is no offence against the 
 
 say that the word " threat " is limited to the statute ; nevertheless, it is not so used as to 
 
 declaration of an intention to do acts which constitute a threat. The question, in my 
 
 have an intimate connection with injury or mind, is whether it was used for a purpose 
 
 personal violence to another. The cases that which could be construed into a threat 
 
 have been decided show that the word must within the meaning of the statute ? When 
 
 have a wider sense than has been put upon I find the resolution passed was notcommu- 
 
 it, namely, a threat by act or words for the nicated to the master, except in answer to 
 
 purpose of doing some injury to another his inquiiy, by way of explanation why these 
 
 person ; that would come within the mean- persons had left his employment, and then 
 
 ing of a threat within the Act of Parliament, communicated simply for the purpose of 
 
 I apprehend that it is very essential to a giving that information, it seems to me that 
 
 "threat," that it should be made for the it wants the essential element of a threat, 
 
 purpose of intimidating the person to whom Therefore, I am of opinion that the appel- 
 
 it is addressed. Now, here an agreement was lants were not rightly convicted.' 
 come to not to work for the master until he (m) Skinner v. Kitch, 10 Cox, C. C. 493. 
 
 reduced the number of his apprentices.
 
 ADDENDA 
 
 THE FIRST VOLUME. 
 
 Solitary Confinement. — The punishment of solitary confinement 
 having fallen into disuetude, the sections relating to it (7 & 8 Geo. 4, 
 c. 28, s. 9, and 1 Vict. c. 90, see p. 66; 24 & 25 Vict. c. 96, s. 119, c. 97, 
 s. 75, c. 98, s. 53, c. 99, s. 40, andc. 100, s. 70, see p. 83; and 1 Vict. c. 91, 
 s. 2, see p. 258) have been repealed by the Statute Law Revision Act, 1893, 
 56 & 57 Vict. c. 54. The power to give it as an additional punishment 
 contained in many sections of the Consolidation Acts has also been 
 repealed by the same statute. 
 
 The Penal Servitude Act, 1891 (see p. 79), having provided that in all 
 cases where a sentence of penal servitude may be awarded, a period of not 
 less than three years and not more than five years, or any longer period 
 fixed by the special enactment, may be given, or, in lieu thereof, imprison- 
 ment for not more than two years, with or without hard labour; the pro- 
 visions to this effect in the Coining Act, 24 & 25 Vict. c. 99, and the other 
 Consolidation Acts, have been repealed, as also the words, ' at the discre- 
 tion of the Court ' in several sections, by the Statute Law Revision Acts, 
 1892 and 1893. 
 
 P. 18, note a. — The 56 & 57 Vict. c. 23, has been repealed and sub- 
 stantially re-enacted by 57 & 58 Vict. c. 21. 
 
 Pp. 18, 19. —The 17 & 18 Vict. c. 104, and the 18 & 19 Vict. c. 91, 
 and the 30 & 31 Vict. c. 124, are repealed by the Merchant Shipping Con- 
 solidation Act, 1894 (57 & 58 Vict. c. 60), and substantially re-enacted by 
 sees. 684-687. By sec. 689, power is given to a British consular officer to 
 detain any master, seaman, or apprentice employed on any British ship, on 
 complaint that any offence against property or person has been committed 
 by him, at any place, ashore or afloat, out of Her Majesty's dominions or on 
 the high seas, and may send him in custody to the United Kingdom or 
 to any British possession, in which there is a court capable of taking cog- 
 nizance of his offence. 
 
 P. 154. — R. v. Lord Mayor of London, 16 Q. B. D. 772, not 18 Q. B. 
 D. 772.
 
 976 Addenda to the First Volume. 
 
 P. 206. — Where an accused person, summoned before justices in 
 respect of an offence triable summarily, elects, under sec. 17 of the 
 Summary Jurisdiction Act, 1879, to be tried by a jury, the subsequent 
 procedure before justices is the same as that which is applicable to 
 the case of indictable offences, and not that applicable to summary 
 proceedings. The accused person may therefore be committed to take 
 his trial in respect of any indictable offence disclosed by the deposi- 
 tions, and, in cases not falling within the Vexatious Indictments Act, or 
 in which the operation of that Act is limited by 30 & 31 Vict. c. 35, s. 1, 
 counts may be added to the indictment in respect of any indictable offence 
 disclosed by the depositions, although the accused was not summoned 
 before the justices in respect of such offence. R. v. Brown, (1895), 1 Q. B. 
 119. 
 
 P. 315. — All false statements wilfully and corruptly made by a witness 
 as to matters which affect his credit are material, and he is liable to be 
 convicted of perjury in respect of them. So where a person charged with 
 selling beer without a licence, falsely swore that, when previously con- 
 victed of a similar offence, he had not authorised his solicitor to plead 
 guilty, it was held that such a statement was material, as it affected his 
 character as a witness, and that he was rightly convicted of perjury. Pv. 
 v. Baker, (1895), 1 Q. B. 797. The case was not argued, and is therefore 
 not entirely satisfactory. It would seem, however, that evidence was 
 called on the second charge of selling beer without a licence, which 
 shewed that the defendant had authorised his solicitor to plead guilty on 
 the previous occasion, and therefore the defendant's denial that he had 
 done so was material and relevant to the issue as affecting the defendant's 
 credit as a witness. It is difficult to see otherwise how such a statement 
 could be material, as the previous conviction itself could only affect the 
 punishment, and not the second charge. 
 
 p. 324. — By the Prevention of Cruelty to Children Act, 1894 (57 & 
 58 Vict. c. 41), sec. 15, power is given to receive the unsworn evidence of a 
 child of tender years in any proceeding for certain offences therein named 
 (see Vol. III.), and by subsec. (b) 'Any child whose evidence is re- 
 ceived as aforesaid, and who shall wilfully give false evidence, shall be 
 liable to be indicted and tried for such offence, and on conviction thereof 
 may be adjudged such punishment as is provided for by sec. 11 of the 
 Summary Jurisdiction Act, 1879.' 
 
 The effect of this section is to give the Court power to order the child, 
 if convicted, either to pay a fine not exceeding £10, or to be imprisoned, 
 with or without hard labour, for not more than three months, or if the 
 child is a boy, and in the opinion of the Court under fourteen years of age, 
 to be whipped with not more than twelve strokes of a birch rod. 
 
 P. 444. _ The 46 & 47 Vict. c. 41, is repealed by 57 & 58 Vict. c. 60.
 
 Addenda to the First Volume. 977 
 
 P. 455. — By the Corrupt and Illegal Practices Prevention Act, 1895 
 (58 & 59 Vict. c. 40), sec. 1 : ' Any person who, or the directors of any body 
 or association corporate which, before or during any parliamentary elec- 
 tion shall, for the purpose of affecting the return of a candidate at such 
 election, make or publish any false statement of fact in relation to the 
 personal character or conduct of such candidate, shall be guilty of an 
 illegal practice within the meaning of the provisions of the Corrupt and 
 Illegal Practices Prevention Act, 1883, and shall be subject to all the 
 penalties for the consequences of committing an illegal practice in tin- 
 said Act mentioned, and the said Act shall be taken to be amended as if 
 the illegal practice defined by this Act had been contained therein. 
 
 Sec. 2. ' No person shall be deemed to be guilty of such illegal prac- 
 tice if he can shew that he had reasonable grounds for believing, and did 
 believe, the statement made by him to be true. 
 
 'Any person charged with an offence under this Act, and the husband 
 or wife of such person, as the case may be, shall be competent to give evi- 
 dence in answer to such charge.' 
 
 By the principal Act, 46 & 47 Vict. c. 51, s. 10, an illegal practice is 
 punishable on summary conviction, but an appeal lies, by sec. 54, to 
 Quarter Sessions. 
 
 P. 648, note to sec. 5 of 6 & 7 Vict. c. 96. — An indictment charged the 
 defendant with ' unlawfully ' publishing a defamatory libel, but omitted 
 to aver that it was published 'maliciously'; the Court (Lord Russell, C. 
 J., Pollock, B., Wills, Charles, and Lawrance, JJ.) held the indictment to 
 be good on the ground that the section merely fixed the punishment to be 
 awarded to an existing common-law offence, and that as in an indict- 
 ment for the common-law offence an averment of malice was unneces- 
 sary, the section did not make it so. R. v. Munslow, (1895), 1 Q. B. 
 758; see R. v. Harvey, 2 B. & C. 257, ante, 643; Bromage v. Prosser, 4 B. 
 & C. 247 ; Lord Russell, C. J., and Charles, J., also thought that if the 
 absence of the word was a defect, it was cured by the verdict. 
 
 P. 746. — In order to convict on an indictment under 16 & 17 Vict. 
 c. 119, s. 1, it is unnecessary to prove that persons have physically re- 
 sorted to the premises; and the offence maybe proved by shewing that the 
 house was opened and advertised as a betting house, although no proof is 
 given that any person actually resorted to it. But when the only evidence 
 offered is that persons did resort to the house for the purpose of betting, it 
 is insufficient to shew that letters and telegrams were sent there by per- 
 sons wishing to bet; but an actual physical resorting must be proved. 
 R. v. Brown, (1895), 1 Q. B. 119. 
 
 P. 746, add to note (s). — The section does not apply where members of 
 a bond fide club make bets with each other in the club. Downes v. John- 
 son, (1895), 2 Q. B. 203. 
 vol. i. — 62
 
 978 Addenda to the First Volume. 
 
 P. 746, add to note (t). — If a man uses the bar of a public house for 
 the purpose of meeting with persons with whom he intends to bet, he 
 is guilty of an offence under tbe section, although the actual money is 
 always handed over to him outside the house. R. v. Worton, (1895), 1 
 Q. B. 227.
 
 INDEX 
 
 TO 
 
 THE FIRST VOLUME. 
 
 A. 
 
 ABANDONING CHILDREN, 196. 
 ABATEMENT, 
 
 pleas in, 38. 
 of nuisance, 755. 
 
 undue, of price of native commodities, indictable, 476. 
 ABROAD, 
 
 crimes committed, where triable, 16. 
 ACCESSORY, 
 
 acquittal as, a bar to indictment as principal, 48. 
 punishment of, 84. 
 at the fact, 161. 
 
 aider and abettor formerly considered, 161. 
 before the fact, 170. 
 
 who is to be so considered, 170. 
 
 degree of incitement, 170. 
 
 the same person may be such accessory, and also a principal, 170. 
 
 but not so chargeable in one indictment, 170 n. 
 how he differs from a principal in the second degree, 171. 
 
 if a man be indicted as, he cannot be convicted on evidence of his 
 being present aiding and abetting, 171. 
 after an acquittal on such objection, he may be indicted as 
 principal, 171. 
 description of, in different statutes, 171. 
 
 if a person be present, he is not an accessory but a principal, 171, 172 n. 
 by the intervention of a third person, 165, 166, 172. 
 he who procures a felony to be done is a felon, 172. 
 in what crimes there may be, 172. 
 in murder, 172. See Murder. 
 in manslaughter, 172. 
 in forgery, 173. 
 cannot be in a misdemeanor, 174. 
 in misdemeanors all are principals, 174. 
 felonies created by statute, 174. 
 accessorius sequitur naturam principalis sui, 174. 
 
 how far an accessory is implicated when the principal varies from the 
 terms of the instigation, 175. 
 when he commits a different crime, 175. 
 
 when the accessory repents and countermands the principal, 176. 
 counselling a pregnant woman to murder her child, 175. 
 accessory before the fact to felo de se was not triable, 185. 
 indictment against accessory before conviction of principal, 186. 
 joinder of counts in indictment against accessories. 1*6.
 
 980 Index. 
 
 ACCESSORY — continued. 
 
 person may be accessory to larceny of his own goods, 178. 
 or an accessory before the fact, 178. 
 after the fact, 
 
 wife of felon is not, 158, 179. 
 
 husband may be, 179 n. 
 
 who is to be so considered, 176, et seq. 
 
 by receiving, comforting, &c, the felon, 177. 
 
 employing another to harbour the principal, 177. 
 
 any assistance to prevent apprehension, trial, or punishment, suffi- 
 cient, 177. 
 
 rescuing a felon, or voluntarily permitting his escape, 177. 
 
 must be some personal assistance to the felon, 178. 
 
 by assisting a felon sentenced to be transported, 592. 
 
 in offences created by statute, 178. 
 
 must know of the felony committed, 179. 
 and the felony must be complete, 179. 
 
 proceedings against, at common law uufrequent, 179. 
 
 by statute, 182. 
 
 punishment of, 179, 182, 190. 
 
 receivers of stolen goods, 186. 
 
 in murder, 780, et seq., 799. 
 
 in manslaughter, 172, 810, 841 
 proceedings against, indictment, &c, 180-182. 
 
 how and where to be tried, 180-182. 
 
 enactments respecting, 180. 
 
 principal and accessory in same indictment, 180-182. 
 
 where the offence is local, 181. 
 
 the felony must have been committed, 181. 
 
 in case of murder, 181. 
 
 against accessories after fact, 182. 
 
 punishment, 182, 184. 
 
 where principal dies or is pardoned, 182. 
 
 any number may be indicted together, 183. 
 venue, 183. 
 offences on sea, 184. 
 
 punishment of abettors in misdemeanors, 184. 
 
 indictment may charge same person as accessory before and after 
 fact, 187. 
 
 indictment of accessory must state that principal committed offence, 
 188. 
 
 may be accessory to more than one, 188. 
 
 arraigned as accessory to such principals as are convicted, 188. 
 
 indicted as accessory to several, found guilty as accessory to one, the 
 verdict good, 188. 
 
 accessory before may be charged as principal, 188. 
 
 no person shall be tried more than once for the same offence of being 
 accessory, 188. 
 
 former acquittal, when a good bar, 188. 
 
 principal acquitted may be tried as accessory after, 188. 
 
 accessory before acquitted may be tried as accessory after. 188. 
 
 he may controvert the guilt of the principal, 188. 
 
 a confession by the principal no evidence against the accessory, 189. 
 
 qucere whether conviction of principal is, 190. 
 
 letters and statements of principal, 190. 
 
 in coining, 215, 242. 
 
 in piracy. 267. 
 
 in riot, 555. 
 
 in bigamy, 664. 
 
 ACTION, 
 
 how proved, 385. 
 
 ADJOINING COUNTIES. See Venue. 
 costs of prosecutions in, 96.
 
 Index. 981 
 
 AD QUOD DAMNUM, 
 
 writ of, virtually abolished, 773. 
 
 repairs of a road made in pursuance of, 803. 
 
 ADMINISTERING, 
 
 convict's property, 110. 
 
 ADMIRALTY, 
 
 jurisdiction of, 9, et seq. See Venue. — Sea. 
 in piracy, "268. 
 
 ADULTERER, 
 
 taking goods by the delivery of adulteress, 155-158. 
 
 AFFIDAVIT, 
 
 perjury on, 388. 
 
 by marksman, 388. 
 incomplete, 393. 
 unused, 394. 
 wrongly entitled, 394. 
 
 AFFINITY, 
 
 marriages void for, 665. 
 
 AFFIRMATIONS, 
 
 in lieu of oaths, 323, 324. 
 
 AFFRAY, 
 
 definition of, 587. 
 
 difference between, and a riot, 587. 
 
 aggravated, 587. 
 
 words will not make an affray, 58S. 
 
 but there may be one where there is no actual violence, 588. 
 as where a person goes armed, 588. 
 prohibited by 2 Edw. 3. c. 3, 588. 
 
 construction of that statute, 589. 
 suppression of, by a private person, 589. 
 
 arresting affrayer, 589. 
 
 giving affrayer in charge to a constable, 589, 591. 
 
 continuance of affray, 589. 
 suppression by a constable, 590. 
 
 where the affray is in his presence, 590. 
 
 where it was not in his presence he cannot arrest, 591. 
 by a justice of the peace, 592. 
 punishment, 592. 
 
 AGENT, 
 
 innocent, 165, 166. 
 
 AGRICULTURAL HOLDINGS ACT, 
 
 perjury in references under, 298. 
 
 AIDERS AND ABETTORS. See Principal. 
 
 abettors in misdemeanors, 184. 
 
 principals in the second degree, 161. 
 
 formerly considered accessories at the fact, 161. 
 
 and not triable till principal convicted, 161. 
 how far they must be present at the commission, 162. 
 
 what shall constitute such presence, 162. 
 of a crime done in prosecution of some unlawful purpose by several, 167. 
 
 where there is a general resolution against all opposers, 168. 
 indictment against, 169. 
 
 ALEHOUSE, 
 
 keeping, without a licence, why not indictable, 202. 
 disorderly, 740. 
 
 ALE LICENCES, 
 
 granting, and refusing improperly, 200 n. 
 
 ALIEN. See Foreigner.
 
 982 Index. 
 
 AMENDMENTS, 
 
 under 9 Geo. 4, c. 15, 53. 
 
 11 & 12 Vict. c. 6, s. 4, 53. 
 
 12 & 13 Vict. c. 45, s. 10, 54. 
 14 & 15 Vict. c. 100, s. 1, 54. 
 
 court may amend variances not material to the merits, and by which the 
 
 prisoner cannot be prejudiced, 56. 
 comparison of the statutes allowing amendments, 50. 
 where amendments may be made, 56. 
 merits of the case, 56. 
 prejudice of the defendant, 57. 
 amendments should be liberally made, 57. 
 variance in name, 58. 
 
 trial for perjury, description of property, 58. 
 name of a person, 58. 
 ownership of goods, 58. 
 highway, 59. 
 in bigamy, 59. 
 
 after one person has pleaded guilty, 59. 
 not to alter the offence charged, 59. 
 not to render indictment bad, 60. 
 as to statement of false pretence, 60. 
 disposal of body of a child, 60. 
 amendment is discretionary, 61. 
 by what court, 61. 
 at what time, 61. 
 must be before verdict, 61. 
 amended indictment can only be considered, 62. 
 of variances in indictments for perjury, 334, et seq. 
 
 AMMUNITION, 
 
 furnishing foreign state with, 254. 
 
 APPREHENSION. See Arrest. 
 
 abroad, costs of, 100. 
 
 rewards for, 104. 
 APPRENTICES, 
 
 overseers prosecuting for assaults on, 93. 
 
 costs in cases of ill-treatment of, 93. 
 
 ARMS, 
 
 affray by going armed, 588. 
 
 prohibition by 2 Edw. 3, from going armed, 589. 
 
 construction of this statute, 589. 
 
 in night poaching cases, 954. 
 
 ARMY, 
 
 sale of commissions, 438. 
 
 ARRAIGNMENT, 
 
 of idiots, deaf and dumb persons, &c, 119 n. 
 ARREST. See Process. 
 of coiners, 217. 
 opposing an arrest upon criminal process, 880, et seq. 
 
 by rescue, 904. 
 when affray, 588. 
 
 of clergyman during divine service, 655. 
 going to or returning from church, 655. 
 of persons escaping from Great Britain to Ireland, &c, 890. 
 authority to arrest In cases of night poachiug. 951, et seq. 
 authority to arrest persons found committing indictable offence at night, 952. 
 
 ASSAULT, 
 
 when conviction for, a bar to indictment, 45. 
 
 costs, 94. 
 
 on custom-house officer not indictable, 202. 
 
 by husband in infecting wife with disease, 204 n. 
 
 assaulting keepers, 952, et seq.
 
 Index. 983 
 
 ASSEMBLY, 
 
 to commit offence under Revenue Laws, 280, 290. 
 
 unlawful, 364, et seq. See Unlawful Assembly. 
 ATTAINDER. See Forfeiture. 
 ATTEMPTS, 
 
 to obtain money by false pretences not within Vexatious Indictments Act, 3. 
 
 no acquittal of offence when attempt proved, 63. 
 
 definition of attempt, 64 n., 195 n. 
 
 to commit felonies or misdemeanors, when indictable, 195-199. 
 
 to bribe, 443. 
 
 endeavouring to provoke another to send a challenge, 593. 
 
 inciting persons to assemble in a riotous manner, 556. 
 
 conviction of an attempt on an indictment for a felony or misdemeanor, 62. 
 AUCTION, 
 
 mock, 504. 
 AUTHORITY, 
 
 GXCUSG tjl2(3. 
 
 AUTREFOIS^CONVICT OR ACQUIT, 
 pleas of, 38. See Pleas. 
 
 B. 
 
 BAILIFF. See Sheriff. 
 BAKER, 
 
 indictment against for mixing alum with his flour, 203, note (a), 274. 
 by means of his servants, 274. 
 BALLOT" ACT, 
 
 offences against, 457. 
 BANK NOTES, 
 
 description of, in indictment, 26. 
 BANKRUPTCY OFFENCES, 
 
 within Vexatious Indictments Act, 2. 
 
 plea of autrefois acquit, 47. 
 
 perjury in claims, 298, 384. 
 
 making false schedule of debts, 398. 
 BANKS, 
 
 property of, how laid, 29, 34. 
 BANNS. See Bigamy. 
 
 BARON AND FEME. See Feme Covert. 
 BARRATRY, 
 
 definition of, 489. 
 
 by whom it may be committed, 489. 
 
 indictment and proceedings, 489. 
 
 trial, 489. 
 
 punishment, 489. 
 BASTARDY, 
 
 bringing a bastard child into a parish not indictable, 203. 
 
 indictment for secreting a woman with child, 202 n. 
 
 perjury on summons, 305, et seq. 
 
 materiality of oath, 314, et seq. 
 
 proceedings, how proved, 386, et seq. 
 BATHING, 
 
 when indictable, 750, 751. 
 BAWDY-HOUSE. See Disorderly House. 
 BENEFIT OF CLERGY, 65. 
 BETTING. See Gaming. 
 BIBLE, 
 
 ridiculing, 613.
 
 984 Index. 
 
 BIGAMY, 
 
 amendment of indictment for, 59. 
 
 its proper signification, 659. 
 
 originally of ecclesiastical cognisance only, 659. 
 
 now a felony, 659. 
 
 exception where second marriage contracted out of England by any other than 
 
 a British subject, 660. 
 exception where husband or wife shall be absent seven years, and not known 
 
 to have been living, 660. 
 reasonable belief in death, 660. 
 exception as to persons divorced, 662. 
 
 exception as to persons whose former marriage has been declared void. 663. — 
 of the two marriages, 663. 
 what must be proved, 663. 
 
 principals in second degree and accessories, 664. 
 other party to marriage guiltv of inciting, 664. 
 trial, 664. 
 venue, 665. 
 
 of the first marriage, 665. 
 where void for consanguinity or affinity, 665. 
 Marriage Acts, 666-6S7. 
 
 banns, 666, 668, 670, 680. 
 
 marriage of minors, 667, 668, 672. 
 
 necessary consent, 672. 
 
 licence for marriage, 667, 668, 670, 671, 673. 684. 
 
 marriage in church or chapel, 673, 678. 
 
 marriage of Quakers and Jews, 674, 675, 6S1, 685, 687. 
 
 marriage on production of registrar's certificate, 675, 676, 682. 
 
 registration of places of worship for solemnising marriages, 677. 
 
 marriage in presence of registrar, 678. 
 
 licensing chapels for solemnisation of marriage, 678, 679, 680. 
 
 marriages void if unduly solemnised with knowledge of both parties. 679. 
 
 provision for marriages in Welsh tongue, 680. 
 
 banns may be published in chapels where marriages may be solem- 
 nised, 680. 
 
 Roman Catholic chapels, 6S1, 685. 
 
 no notice of marriage to be published before poor law guardians, 682. 
 
 notices of marriage to registrar, 682, et seq. 
 
 form of licence granted by superintendent registrar, 684. 
 
 mode of solemnising marriage in registered building, 685, 686. 
 
 proof of observance of requisitions of Act in certain matters not 
 necessary, 686. 
 
 marriages in extra parochial places, 687. 
 
 hours within which marriages may be celebrated, 687. 
 cases decided upon Marriage Acts, 687, et seq. 
 
 banns in wrong name, 688. 
 
 mere misspelling, 689. 
 
 both parties must be aware of the error to invalidate marriage, 689. 
 
 assuming a fictitious name on second marriage, 690. 
 
 marriage by licence in wrong name, 691. 
 
 evidence of marriage by special licence, 692. 
 
 marriage by a minor without consent, 692. 
 
 clergyman must be present at marriage by the common law, 693. 
 
 clergyman cannot marry himself, 693. 
 
 what necessary to prove in support of marriage by registrar, 694. 
 
 marriage in Wesleyan chapel, 695. 
 
 marriages in churches erected since 26 Geo. 2, c. 33, evidence of banns 
 before that Act, 695, 696. 
 
 presumption in favour of valid marriage, 695 n. 
 
 marriages in district churches. 607. 
 
 certain chapels and buildings held valid, 698. 
 Scotland, 698, 699. 
 St. Domingo, 699. 
 Ireland, 699-704.
 
 Index. 985 
 
 BIGAMY — continued. 
 
 marriage of Protestants by Roman Catholic priest, 704. 
 
 on board any of H. M. ships, 704, 707. 
 Foreign Marriage Act, 704-711. 
 
 marriages abroad, 704, et seq. 
 notice, 704. 
 consent, 704. 
 
 oaths to be taken by parties, 705. 
 solemnisation of marriage, 705, 706. 
 hours, 700. 
 
 registration, 706, 708. 
 who are marriage officers, 707. 
 what proof necessary of marriage, 708. 
 false oaths or declarations, perjury, 708. 
 notices, certificates, and registers evidence, 708. 
 power to make orders in council, 709. 
 depositions, 710. 
 marriages of British subjects in foreign places, 711, 712. 
 proof of Quaker marriage, 712. 
 Jewish marriage, 712. 
 Jewish divorce, 712. 
 marriage in France, 712. 
 marriages of lunatics and idiots, 712. 
 marriages by reputation, when not sufficient, 712. 
 evidence of marriage, 713. 
 photograph to establish identity, 714. 
 entries in registers, how proved, 714. 
 prisoner's acknowledgment of marriage, 713, 714, 715. 
 true wife cannot be a witness, 715. 
 
 unless her marriage void, 715, 716. 
 letter in handwriting evidence of life, 716. 
 indictment, 716. 
 BINDING OVER, 
 to prosecute, 2. 
 to keep peace, 84. 
 to come up for judgment, 85. 
 BISHOP'S CHARGE, 
 
 libel in, 611 n. 
 BLASPHEMY. See Libel. 
 
 still indictable at common law, 201. 
 BOUNDARIES OF COUNTIES. See Venue. 
 BOROUGH FUND, 
 costs out of, 104. 
 BRAWLING, 
 
 in church, 652, et seq. 
 BREACH OF PEACE, 
 
 indictable, 194. 
 BREAD, 
 
 putting unwholesome ingredients in, by a baker, indictable, 203 n., 274. 
 by servant with master's knowledge, master indictable, 274. 
 BREWING, 
 
 nuisance by, 732. 
 BRIBERY, 
 
 buying and selling offices, 433, el seq. 
 attempting to bribe cabinet minister, 197, 433. 
 member of corporation, 197. 
 juryman, 197. 
 judge, 197. 
 public bodies, 440. 
 town councillor, 441. 
 county councillor, 441. 
 in what it may consist. 443.
 
 986 Index. 
 
 BRIBERY — continued. 
 definition of, 443. 
 attempts to bribe, 443. 
 at parliamentary elections, 444, et tier/. 
 paying railway expenses, 444 n., 446. 
 corrupt payment of rates, 446. 
 payments for loss of time, 440. 
 
 for attending revising court, 446. 
 under colour of a bet, 446. 
 promising refreshments, 446. 
 charitable donations, 446. 
 payment for personation, 446. 
 bribing disqualified voter, 446. 
 time at which bribery took place, 446. 
 payment of money after election is over, 446. 
 subordinate agents, 447. 
 costs of prosecution, 447, 453. 
 interpretation clauses, 447, 454. 
 indictment, 448. 
 
 parties made witnesses, 448, 452. 
 register of voters made evidence, 448. 
 employment before election, 448. 
 commissions to inquire into, 448. 
 treating, 449. 
 undue influence, 449. 
 personation, 450, 458. 
 trial, 451, et st q. 
 removing into High Court, 451. 
 limitation of time, 451. 
 costs, 153. 
 
 certificates of indemnity, 453. 
 decisions on repealed statutes, 455. 
 Ballot Act, 457. 
 
 forgery and other similar offences under, 457. 
 at municipal elections, 460, et seq. 
 BRIDGES, 
 
 of public bridges, 852. 
 
 of private bridges, 852. 
 
 whether a structure be a bridge is a question of fact, S52. 
 
 counties bound to repair bridges over streams flowing between defined 
 
 banks, 853. 
 sometimes land arches, 853, 854. 
 dedication of a bridge to the public, 854. 
 a bridge may be indictable as a nuisance, 855. 
 
 if built without public utility, or colourably to charge county, 855, 865. 
 of nuisances to, by obstructions, 855. 
 
 house adjoining, 855. 
 of nuisances by not repairing, 855, et seq. 
 
 liability of the county to repair, 855, et seq. 
 unless they shew others liable, 855. 
 county of a town, 855. 
 hundred or parish, 855. 
 corporation aggregate, 855. 
 franchise, 855. 
 liability ratione tenurce, 856-859. 
 
 not removed by an Act of Parliament, 856. 
 person liable by receipt of toll, 856. 
 
 ancient presentments and verdicts, and grants of pontage, 857. 
 evidence of corporation repairing, 858. 
 of immemorial liability, 858, 859. 
 repairing of bridges by The Statute of Bridges, 860. 
 
 and of three hundred feet of the highway next adjoining, 860. 
 divisions of county, 860. 
 of the nature of this liability, 861.
 
 Index. 987 
 
 BRIDGES — continued. 
 
 county of a city enlarged liable to repair bridges 
 in the district so added, 861. 
 an infant bound to repair ratione tenurce, not privileged by nonage, 113, 
 
 no person compellable to build new bridges, 861. 
 
 power of justices to order bridges to be widened, &c. or rebuilt, 862. 
 
 composition as to repair between county and parish, where the latter is 
 
 liable to repair, 862. 
 pulling down old bridge before new one passable, 863. 
 county to repair bridges if of public utility, 863, 864. 
 must be acquiescence by county, 864. 
 only liable to repair bridges in highways, 864. 
 
 new bridges only to become repairable "by county on certain conditions, 865. 
 power to contribute to expense of erection, 865. 
 where old bridge widened, 866. 
 
 county not liable where bridge built by trustees under statute, 867, 868. 
 party liable to repair a bridge is prima facie liable to repair the approaches, 
 
 bridge within three hundred feet of bridge in another county, 869. 
 those who are liable to repair must do it effectually, 870. 
 
 county not bound to widen, 870. 
 Locomotive Act, 1861, does not apply to public bridges, 870. 
 
 procuring moneys for repairs of bridges, and of contributions, 871. 
 justices may contract for repairs, &c, 871. 
 information, presentment, or indictment, for not repairing, 872, et seq. 
 
 proceedings of justices in sessions, 873. 
 
 indictment, 873. 
 
 against individual, 873, 874. 
 
 against parish, 873. 
 
 against hundred, 873. 
 
 against corporation, 873, 874. 
 
 against township, 874. 
 
 occupier of land liable to repair of a bridge is indictable, 875. 
 
 infant where not liable ratione tenurce, 875. 
 
 pleadings, special plea, &c, 875, et sea. 
 
 trial, 877. 
 
 evidence, 877. 
 
 inhabitants of counties witnesses against private persons, 877. 
 
 reputation admissible, 877. 
 
 the judgment, 878. 
 staying it, 878. 
 
 costs of a frivolous defence, 878. 
 
 certiorari to remove presentments or indictments, 878. 
 
 defendant and wife admissible witnesses, 879. 
 
 right of county council to take over, erect, and maintain bridges, 879. 
 BROTHEL. See Disorderly House. 
 BUILDING, 
 
 riotously demolishing, 566. 
 nuisance by, 753. 
 
 BUILDING SOCIETY, 
 
 property of, how laid, 35. 
 
 BULL-BAITING, 
 
 assemblies for, not riotous, 554. 
 
 BULLION, 
 
 frauds relating to, 225. 
 
 making gold and silver under the true alloy, 225. 
 fraudulently affixing marks, indictable at common law, 225. 
 frauds in the exportation of bullion, 225. 
 
 BURGLARY, 
 
 plea of autrefois acquit in, 39-41, 47.
 
 988 Index. 
 
 BURIAL. 
 
 obstructing burial service, 655, 943. 
 offences relating to, 934, et seq. 
 omitting and refusing to bury, 936. 
 burning instead of burying, 936. 
 rigbt to burial, 937. 
 preventing burial, 942. 
 BUYING AND SELLING, 
 
 public offices, 434. See Officers. 
 pretended titles, 485. 
 
 c. 
 
 CADETSHIP, 
 
 in India, 440 n. 
 
 CANAL, 
 
 foul water in, nuisance. 753. 
 bridges over, 767. 
 
 CAPABILITY, 
 
 of committing crimes, 113. 
 general rule, 113. 
 want or defect of will, 113. 
 infants. See Infant. 
 idiots. See Idiots 
 lunatics. See Lunatic. 
 drunkenness. See Drunkenness. 
 feme covert. See Married Woman. 
 ignorant persons. See Ignorance. 
 
 CARICATURE. 
 
 libel by publication of, 634. 
 
 CASE RESERVED, 
 costs of, 102. 
 
 CATHEDRAL, 
 
 disturbance in, 653. 
 
 CENTRAL CRIMINAL COURT, 
 
 costs at, 95. 
 
 CERTIFICATE. 
 
 of previous conviction, 70, 71. 
 of indemnity, 453. 
 
 CERTIORARI. 
 
 costs of removal by, 100, 101. 
 to remove indictment for perjury, 366. 
 to remove indictment for nuisance, 759. 
 to remove indictments for nuisances to highways, 819. 
 costs after removal by defendants, 824. 
 for nuisances to bridges, 87S. 
 
 CHAIRMAN OF QUARTER SESSIONS, 
 witness to perjury, 377. 
 
 CHALLENGING, 
 to fight, 593. 
 
 provocation no excuse, 593. 
 
 of endeavouring to provoke another to send a challenge, 593. 
 
 of the intent. 593. 
 of words of provocation. 501. 
 in what county the venue may be laid, 594. 
 criminal information for, 594. 
 punishment for, 594.
 
 Index. 989 
 
 CHAMPERTY, 
 
 description of, 482. 
 
 by statutes, 482. 
 
 punishment, 485. 
 CHANCERY, 
 
 misconduct of officers, 421. 
 CHAPELS. See Dissenting Chapels. 
 CHARACTER, 
 
 proving previous conviction to rebut evidence of, 72. 
 CHEATS, 
 
 attempts to defraud, when not indictable, 202. 
 
 frauds relating to bullion, 225. 
 
 conspiracy to defraud by, 5U5. 
 
 at play, 930. 
 CHILD. See Infant. 
 
 of woman twice convicted, 79. 
 
 not excused where coerced by parent, 146. 
 
 master neglecting to provide for young servant, 204. 
 
 perjury by, where no oath, 324. 
 CHRISTIANITY, 
 
 libels on, 613, et seq. 
 CHURCH. See Disturbance. 
 
 riotously pulling down, 566. 
 
 affrays in, 588. 
 
 right to go to, 652 n. 
 
 brawling in, 652. 
 
 keeping order in, 653. 
 
 breaking windows of, 655. 
 
 arrest of clergyman in, 655. 
 
 forcible entry into, 721. 
 CHURCH RATE, 
 
 disobeying order to pay, 886. 
 CHURCHWARDEN. 
 
 refusing to call vestries, &c, 420. 
 
 obtaining a silver cup or the like, colore officii, 425. 
 
 commenting on clergyman, 612. 
 
 whipping boys in church, 653. 
 CHURCH- YARD, 
 
 affrays in, 588. 
 
 brawling in, 652, et seq. 
 
 striking in, &c, 653. 
 
 arrest of clergyman in, 655. 
 
 disturbing burial, 655. 
 CIRCULAR, 
 
 sending to infant to incite to bet or borrow, 931. et seq. 
 CLERGYMAN. 
 
 a spiritual person taking a farm liable to the penalty of statute Hen. 8, but 
 not indictable, 202. 
 
 whether indictable for refusing to marry persons, 204, 420. 
 
 libellous sermons, 607, 611. 
 
 comments on conduct of. 612, 629. 
 
 arrest of, in church, or church-yard, 655. 
 whilst performing service, &c, 655. 
 
 must be present at marriage, 693. 
 
 cannot marry himself, 693. 
 
 obstructing in. in reading burial service. 943. 
 CLUB, 
 
 where unlawful games are played, 747. 
 
 betting in, Add. 
 COCK-PIT, 
 
 a nuisance, when, 742.
 
 990 Index. 
 
 COERCION, 
 
 excuse from, for committing a crime, 145, el seq. 
 in taking unlawful oaths, 405, et seq. 
 
 COIN. See Coining Instruments — Bullion. 
 description of, in indictments generally, 26. 
 
 having counterfeit coiu in possession with intent to utter it, no offence at 
 common law, 198. 
 
 but it is good evidence of having procured it, which is an offence, 198. 
 counterfeiting, '207. 
 
 what is the King's money, 207. 
 necessary evidence of it, 208. 
 interpretation of terms in the Coin Act, 208. 
 counterfeiting gold and silver coin, 209. 
 
 offence complete, though the coin be not in a fit state to be ut- 
 tered, 213. 
 colouring counterfeit coin or pieces of metal to make them pass as 
 
 gold or silver coin, 209. 
 altering genuine coin to make it pass for higher coin, 209. 
 . counterfeiting foreign gold, silver, or copper coin, 210. 
 foreign coin not current here, 211. 
 copper money, 211. 
 
 of this realm, 211. 
 selling medals resembling current coin, 211. 
 counterfeiting by officers of the Mint. 211. 
 
 what shall constitute the offence in them, 211. 
 what will be a sufficient counterfeiting, 211. 
 
 round blanks like shillings worn smooth by circulation, 212. 
 where the false coin is so imperfect as not to be passable, 
 
 212-217. 
 what was a colouring within 8 & 9 Will. 3, 213. 
 gilding with gold within 2 Will. 4, c. 34, s. 4, 214. 
 counterfeiting complete without uttering, 214. 
 procuring dies with intent to counterfeit, 214. 
 principals and accessories in, 215. 
 
 what not sufficient evidence of, counselling, &c, 215. 
 venue, 216. 
 
 offences at sea, 216. 
 what sufficient proof of the coin being counterfeit, 217. 
 apprehension of offenders, 217. 
 sureties of the peace, 217. 
 solitary confinement, 218. 
 hard labour, 218. 
 costs, 93, 218. 
 
 coining-tools and base money, how to be secured and disposed of, 219, 
 220. 
 impairing, 220. 
 
 impairing, diminishing, or lightening, 220. 
 having clippings, &c, in possession, 221. 
 defacing coin, 221. 
 tender of such coin, 221. 
 searching for clippings, 221. 
 melting coin, 222. 
 importing counterfeit or light money, 222. 
 counterfeit coin current here, 222. 
 foreign not current here, 223. 
 exporting counterfeit money, 223. 
 
 to the colonies, 224. 
 uttering, or tendering counterfeit coin, 233. 
 
 formerly, in some cases, cheat and misdemeanor, 233. 
 
 uttering counterfeit gold or silver coin, 234. 
 
 uttering, having possession of other base coin, 234. 
 
 a second uttering, 234. 
 
 having three or more pieces in possession with intent, &c, 234.
 
 Index. 991 
 
 COIN — continued. 
 
 second offence, 235. 
 
 evidence of previous conviction, &c, 235. 
 
 proceedings on the trial, &c, 236. 
 
 uttering counterfeit copper coin, 238. 
 
 fourpenny piece described as a 'groat,' 238. 
 
 what a putting off counterfeit money within the former Act, 
 
 239. 
 uttering complete though money not passed, 239. 
 names of persons to whom uttered, to be stated, 239 
 passing money by ringing the changes, 239. 
 giving base coin in charity, 240. 
 losing money at play, 240. 
 
 indictment — two titterings on the same day, 240. 
 on two counts for uttering, two years' imprisonment cannot be 
 given, 241. 
 
 evidence of guilty knowledge, 241. 
 accessories, 242. 
 associate not co-operating, 242. 
 whether associate must be so near as to help to pass the money, 
 
 242. 
 all co-operating guilty, 243. 
 
 where possession of one defendant is the possession of another, 
 244. 
 
 form of indictment, 244. 
 allegation of knowledge, 244. 
 uttering foreign counterfeit coin, 245. 
 first uttering, 245. 
 second, 245. 
 third, 245. 
 
 proceedings against persons having in custody more than a cer- 
 tain quantity, 245 n. 
 uttering foreign medals, 246. 
 buying, selling, or paying counterfeit coin at lower rate than its denomination, 247. 
 the sum for which it is agreed to be sold need not be stated, 247. 
 the money must be sold at a lower rate, 248. 
 name of person to whom it is sold should be stated, 248. 
 
 COINING-INSTRUMENTS, 
 
 may be produced in evidence, 219. 
 
 making, mending, or having in possession, 198, 226, 230. 
 
 lawful excuse, 226. 
 
 conveying tools or moneys out of the Mint, 227. 
 
 batteries are ' machines,' 227. 
 
 a press or mould, 227. 
 
 a puncheon, 228. 
 
 for making foreign gold coin, was within the statute, 229. 
 
 die made by innocent agent, 229. 
 
 evidence, 230. 
 
 proof of a die made either of iron or steel, 230. 
 
 exact resemblance to the coin, 230. 
 
 where necessary to prove that the instrument had a perfect impression of 
 a coin upon it, 230. 
 
 mould must be complete, 231. 
 
 evidence of possession, 231, 232. 
 
 COLONIES, 
 
 trial of offences committed in, 24. 
 offences by governors, 25. 
 
 COMBINATION. See Conspiracy. 
 
 societies taking unlawful oaths, &c, to be deemed unlawful combinations, 
 574, et seq. 
 
 COMMISSIONER FOR OATHS, 
 
 perjury before, 298.
 
 992 Index. 
 
 COMMISSIONER OF POLICE, 
 
 negligence by, 580. 
 COMMISSIONERS OF SEWERS, 
 
 property of, how laid, 30. 
 COMMISSIONS, 
 
 in the army, selling, 438. 
 
 COMMONS, 
 
 excluding commoners not indictable, 202. 
 
 COMPANY, 
 
 property of, how laid, 30. 
 
 COMPENSATION, 
 
 for apprehension, 104, 105. 
 
 to persons defrauded or injured, 110. 
 COMPETENCY OF COURT, 
 
 to administer oath, 297, et seq. 
 
 how alleged in indictment, 344, et seq. 
 COMPETENCY OF WITNESS, 376. 
 
 chairman of quarter sessions, 377. 
 
 county court judge, 377. 
 COMPOUNDING OFFENCES, 
 
 compounding felony, 411. 
 
 taking reward for helping to things stolen, 412. 
 advertising a reward for the return of stolen goods, 412. 
 
 compounding misdemeanors, 412. 
 
 after judgment by leave of the Court, 412, et seq. 
 
 compounding informations on penal statutes, 414. 
 18 Eliz. c. 5, 414. 
 
 statute applied, though no offence has been committed, 414, 415. 
 so though no action or information pending, 415. 
 
 contracts, &c, in consideration of dropping a prosecution, &c, void, 412 n. 
 COMPULSION. See Coercion. 
 CONCEALMENT OF BIRTH, 
 
 acquittal for murder a bar to indictment, 45. 
 
 amendment of indictment for, 60. 
 CONCLUSIONS, 
 
 informal in indictments, 36, 37, 366. 
 CONFEDERACY. See Conspiracy. 
 
 evidence of joint or several acts, to prove, 162, et seq. 
 
 crimes done in pursuance of, in prosecution of unlawful purposes, 162. 
 
 unlawful, what to be deemed, 574, et seq. 
 CONFIDENTIAL COMMUNICATIONS, 607. See Libel. 
 CONGREGATION, 
 
 disturbing, 652, et seq. 
 CONSANGUINITY, 
 
 marriages void for, 665. 
 CONSENT TO MARRIAGE. See Bigamy. 
 CONSPIRACY, 
 
 within Vexatious Indictments Act, 2. 
 
 prosecution for, not maintainable against husband and wife alone, 152. 
 
 societies taking unlawful oaths, &c, to be deemed unlawful combinations, 
 104, et seq. 
 
 /descriptions of, 491. 
 the illegal combination, 492. 
 
 conspiracy to procure abortion where woman not pregnant, 492. 
 by traders to deal exclusively, 492. 
 
 against the public justice of the kingdom by agreeing to make false 
 charges and accusations, 494. 
 
 the false charge need not be prosecuted, 494. 
 the confederacy will be equally criminal though the proceedings intended 
 to be instituted were defective, 494.
 
 Index. 993 
 
 CONSPIRACY — continued. 
 
 the confederacy must be false and malicious, 495. 
 to pervert the course of justice by producing a false certificate of a highway 
 
 being in repair, 496. 
 to defeat an information, 498. 
 to prevent a prosecution, 498. 
 to obtain security from a defendant, 499. 
 to raise the price of the public funds by false rumours, 499. 
 to cheat unspecified persons, 500. 
 to impoverish the farmers of excise, 500. 
 to raise the price of a commodity by fictitious sales, 500. 
 to obtain money by procuring the appointment of a person to an office, 501. 
 to commit riots, 501. 
 to excite discontent, 501. 
 
 to marry paupers, in order to charge a parish, 502, et sea. 
 to let land to a pauper in order to give him a settlement, 503. 
 to charge a man with being the father of a bastard child, 503. 
 to defraud, 503, et seq. 
 
 to make a fraudulent acceptance of a bill of exchange. 504. 
 
 to defraud tradesmen, 504. 
 
 by brokers attending auctions, 504. 
 
 to fabricate shares in a joint stock company, 505. 
 
 to barter unwholesome wine, 505. 
 
 to cheat by fraudulent wager, 505. 
 
 to solemnise a marriage, 506. 
 
 to procure a marriage by licence obtained by a false oath, 506. 
 
 to seduce a young woman, 507. 
 
 to procure a girl to have illicit connection, 507. 
 
 to carry away and marry a female, 50*. 
 
 to impoverish a man in his trade, 508. 
 
 to defeat creditors in a bankruptcy, 50S. 
 
 bankers publishing false balance sheets, 508. 
 
 to induce a man by false representations to become a partner, 508. 
 
 to commit a civil trespass, 509. 
 
 to cheat and defraud a man by selling him an unsound horse, 509. 
 
 to cheat of part of the price of a horse. 509. 
 conspiring to deprive a man of the office of secretary to an illegal trading 
 
 company, 510. 
 to sink a foreign ship, 510. 
 by one partner to defraud another, 511. 
 complaint that members of House of Lords had conspired to deceive the 
 
 House, 511. 
 indictment, 512. 
 
 more than one person must be found to have conspired. 512. 
 husband and wife conspiring, 512. 
 
 imperfect verdict as to one, and acquittal as to others, 512. 
 judgment on one before trial of others, 513. 
 statements in indictment, 514. 
 where it is sufficient to state the conspiracy, 514. 
 where overt acts must be stated, 514. 
 
 conspiracy to obtain the means and power of transferring stock, 514. 
 indictment need not allege that the prosecutor is innocent, 515. 
 not necessary to state the means where the thing intended is illegal, seeks 
 
 where it is legal, 516. 
 nor that the prisoners knew a false certificate to be false, 516. 
 indictment for conspiring to defraud of divers goods, 516. 
 purchasers in the funds, 517. 
 
 to obtain goods without paying for them, 517, 518. 
 by fraudulent deed, 517. 
 
 to defraud of the fruits of a verdict, 518. 
 
 counts too general, 518. 
 count bad for not stating names of persons intended to be cheated, 518, 520. 
 
 to cause imported goods to be delivered without paying duty, 519. 
 where conspiracy is well laid, but overt act insufficiently, 521. 
 
 vol. i. — 63
 
 994 Index. 
 
 CONSPIRACY — continued. 
 
 counts charging a conspiracy to raise discontent, &c, and to stir up ill will 
 
 between different classes, 523. 
 to obtain by means of intimidation and the exhibition of physical force a 
 
 change in the government, 523. 
 overt act unconnected with conspiracy, 526. 
 indictment for conspiracy to conceal bankrupt's estate, 527. 
 technical averment of conspiracy, 527. 
 place of trial, 527. 
 
 jurisdiction of Quarter Sessions, 527. 
 where charge must have been heard before a justice, 528. 
 evidence, 528. 
 
 wife of one defendant incompetent for the others, 528. 
 acts or words of one, when evidence against others, 528, et seq. 
 evidence of what took place at different meetings, 530. 
 of hand-bills, 531. 
 of entries at custom-house, 532. 
 examination taken on winding up petition, 532. 
 I proof of the conspiracy, 533. 
 
 it may be inferred from the separate acts of the parties, 533. 
 persons joining after conspiracy is formed, 534. 
 meeting for one purpose, and conspiring for another, b'-\\. 
 general evidence of its nature, 534. 
 
 either the conspiracy may be proved, or the acts of the parties, 535. 
 cumulative instances of fraud, where admissible, 535. 
 meaning of ' and others ' in an indictment, 536. 
 court will take judicial notice of a war, 536. 
 where it is unnecessary to produce a cheque alleged to be forged, 536. 
 
 to defraud by representing a person in opulent circumstances, 537. 
 proof of conspiracy to defraud of acceptances, 537. 
 
 of money, 537. 
 meaning of ' false pretences' in an indictment, 538. 
 to obtain railway tickets, 538. 
 evidence of loss of profits, 538. 
 record of acquittal of one defendant, 539. 
 divisible averment, 539. 
 
 to induce workmen to leave employment, 539. 
 acquittal for attempt is acquittal for conspiracy, 539. 
 conspiracy must be proved as laid. 539. 
 instances of variances, 539. 
 misdescription of statute. 540. 
 particulars of charges, 540. 
 
 acquittal of defendant intended to be called as a witness, 541. 
 election as to counts, 541. 
 
 conspiracy to commit offence created by repealed statute, 541. 
 change of venue, 541. 
 
 cross-examination where only one defendant calls witnesses, 541. 
 sufficient to convict of so much as charges an indictable offence, 541. 
 verdict on several counts where only one conspiracy is proved, 542. 
 several findings on one charge are bad, 542. 
 
 general judgment on several counts, any of them being bad, is wrong, 542. 
 punishment. 542. 
 
 defendant must be present on motion in court after conviction, 543. 
 new trial, 543. 
 trade disputes. 544. 
 
 Trade Union Act, 1871. 544. 
 
 Conspiracy and Protection of Property Act, 1875, 545. 
 
 amendment of law of conspiracy in trade disputes, 545. 
 
 breach of contract by persons employed in supply of gas or water, 546. 
 
 breach of contract involving injury to persons or property, 546. 
 
 neglect by master to provide food for servant or apprentice, 547. 
 
 penalty for intimidation by violence or otherwise. 547. 
 
 power to be tried by indictment and not by summary conviction, 547. 
 
 regulations as to evidence, 548.
 
 Index. 995 
 
 CONSPIRACY — continued. 
 
 definitions of word ' maliciously,' 548. 
 
 intimidation, 548, et seq. 
 decisions on repealed statutes, 965. 
 
 right of workmen to agree as to rate of wages, 965. 
 
 right of masters to agree as to rate of wages, 966. 
 
 workmen compelling others to quit employment, 967. 
 
 molesting and obstructing workmen and employees, 967. 
 
 combinations for mutual advantage, 969. 
 
 combinations to raise rate of wages, 970. 
 
 threats, 971, et seq. 
 CONSTABLE. See Officers — Arrest. 
 neglecting duties of office, indictable, 419. 
 refusal to execute the office of, &c, indictable, 428. 
 who liable to serve the office, 429. 
 indictment for refusing to serve, 429. 
 refusal to be sworn, evidence of refusing to serve, 429. 
 suppression of affray by, when in his presence, 590. 
 
 no right to apprehend when affray is not committed in his presence, 591. 
 unless by warrant from a magistrate, 591. 
 
 CONTAGION, 
 
 of spreading contagious disorders, 269, et seq. 
 nuisance by, 753. 
 
 CONTEMPT OF COURT, 
 
 imprisonment for, 83 n. 
 indictable, 194, 882 n. 
 
 CONVICTIONS. See Previous Conviction. 
 
 forfeiture of ticket of leave, 75, 79. 
 meaning of term, 110. 
 disqualifications, 108, 111. 
 administration of property of, 110. 
 
 CONVICTS, 
 
 effect of, 108-112. 
 meaning of term, 235 n. 
 
 COPPER, 
 
 coin. See Coin. 
 
 CORN, 
 
 hindering the exportation of. or preventing its circulation, 291. 
 
 11 Geo. 2, c. 22, 291. 
 
 partially repealed, 291. 
 
 persons using violence to deter others, &c., 291. 
 
 summary proceedings before two magistrates, 292. 
 CORONER, 
 
 jurisdiction on seashore, 11. 
 
 acquittal on inquisition a bar to indictment, 45. 
 
 cost of attending inquest, 101. 
 
 perjury at election of, 298. 
 
 perjury before deputy, 300. 
 
 extortion or other breach of duty by, 416. 
 
 neglect by, 419. 
 
 extortion by, 425. 
 
 too speedy interment of a corpse without sending for, 943. 
 
 what ought to be done on the happening of a violent death, 943. 
 CORPORATION, 
 
 chief officers of, absenting themselves from, or hindering elections, &c, 420. 
 CORPSES. See Dead Bodies. 
 CORRUPTION. See Bribery. 
 
 CORRUPT PRACTICES. See Elections. 
 indictment for, 38.
 
 996 Index. 
 
 COSTS, 
 
 of unreasonable prosecution, 4. 
 
 of prosecution in detached part of county, 7. 
 
 of offences on the high seas, 19, 23. 
 
 to he paid by first offenders, ^6. 
 
 in cases of felony, 90. 
 
 misdemeanors, 90. 
 
 Secretary of State may make regulations as to costs, 92. 
 justices' certificate not conclusive, 93. 
 
 costs of misdemeanors under the Criminal Law Consolidation Acts. 93 4 
 in Mint cases, 93. 
 on conviction of assault, 95. 
 
 in cases of ill-treatment of apprentices, servants, &c, 94. 
 of misdemeanors under Offences Against the Person Act, 94. 
 of assault under 14 & 15 Vict. c. 19, 94. 
 13 & 14 Vict. c. 101, s. 9, 95. 
 48 & 49 Vict. c. 69, 95. 
 cases removed to Central Criminal Court, 95. 
 other cases at that Court. 96. 
 in adjoining counties, 96. 
 in exclusive jurisdiction, 97. 
 cases where costs have been allowed, 98. 
 binding over by sessions sufficient, 98. 
 who is the prosecutor, 98. 
 another cannot be allowed costs, 9*. 
 gaming, 99. 
 
 committal on coroner's inquisition, 99, 102. 
 indecent exposure, 100. 
 apprehension abroad, 100. 
 cases removed by certiorari by the prosecutor, 100. 
 
 by the defendant, 100. 
 of attending an inquest, 101. 
 extra allowances, cases of, 102. 
 of cases reserved, 102. 
 where trial postponed, 103. 
 out of a borough fund, 104. 
 compensation, 101. 
 
 to family of a person killed in apprehending prisoner, 105. 
 to person injured, 110. 
 entire order must be served, 107. 
 witnesses for the defence, 107. 
 paid by convicts. 109. 
 in prosecutions for coining. 21b. 
 in prosecution for bribery, 447. 453. 
 in libel, 649, 651. 
 in indictments for nuisance, 7~>9. 
 in highway indictment, 822, el seq. 
 in bridge indictment, 879. 
 COUNTERFEIT, 
 
 money. See Coin. 
 COUNTY. See Venue. 
 
 property of, how laid, 28. 
 costs in adjoining, 96. 
 COUNTY COUNCIL. 
 bribing member, 44o. 
 elections, corrupt practices at, 461 n. 
 duty as to main roads, 826, 838 n. 
 power as to bridges, 879. 
 
 COUNTY COURT, 
 
 proceedings at, how proved, 386. 
 
 COUNTY COURT JUDGE, 
 witness to perjury. 377. 
 proof of authority to administer oath, 380,
 
 Index. 997 
 
 COURT, 
 
 affray in, 588. 
 
 proceedings in court and reports of them privileged, 600, 601. 
 
 COURT FOR CROWN CASES, 
 
 can only consider indictmeut as amended, 61. 
 
 costs in, 103. 
 COURT MARTIAL, 
 
 perjury before, 297. 
 proceedings of, not libel, 599. 
 
 CRIMES, 
 
 definition of, 69. 
 
 punishment of persons twice convicted, 77. 
 children of women twice convicted, 79. 
 capability of committing. See Capability. 
 
 CRIMINAL INFORMATION, 
 
 against justices, &c, 416, et seq. 
 
 CRIMINAL LAW AMENDMENT ACT, 
 
 offences against, within Vexatious Indictments Act, 3. 
 CRITICISM, 
 
 when libellous, 606, et seq. 
 
 CROWD. See Unlawful Assembly. 
 nuisance by causing, 739. 
 
 CRUELTY TO ANIMALS, 
 
 indictment for, 206. 
 
 CUL DE SAC, 
 
 when a highway, 761. 
 
 CUSTOM-HOUSE OFFICER, 
 
 indictment for assaulting in execution of his office, quashed, 202. 
 assault on, indictable at common law, 277. 
 
 count for common assault on, not triable in a wrong county, 290. 
 
 CUSTOMS. See Revenue Laws. 
 
 evading or resisting the duties of, 277, etseq. 
 property of, how laid, 36 
 
 D. 
 
 DEAD BODIES, 
 
 exposing naked, a nuisance, 748, 9:>4. 
 
 taking up, even for the purposes of dissection, indictable, 934. 
 
 though the particular place from whence taken be neither stated nor 
 proved, 934. 
 to disinter is a misdemeanor, 935. 
 even though motive be laudable, 935. 
 refusal or neglect to bury, a misdemeanor, 935. 
 defence of want of means to provide burial, 935. 
 burning a dead body, 936. 
 right to burial, 937. 
 who bound to bury, 937. 
 licences to practise anatomy, 93s 
 master of workhouse disposing of dead body, 940. 
 interment of, when cast on shore, 941. 
 preventing burial, 942. 
 
 obstructing clergyman in reading service, 943. 
 preventing inquest from being held, 943. 
 DEAF AND DUMB, 
 
 when to be considered an idiot, 119. 
 arraignment, &c, of, 119 n., 139, 140.
 
 998 Index, 
 
 DEATH, 
 
 judgment of, 04. 
 DEBATING SOCIETIES, 
 
 when illegal, 580. 
 
 DEBTS, 
 
 making false schedule of, 398. 
 
 DECEASED PERSON, 
 
 libel on, 629. 
 
 DEDICATION. See Highway -* Bridge. 
 DEFACING COIN. See Coin. 
 DEFAMATION. See Libel. 
 
 DEFECTS, 
 
 in indictment how cured, 36. 
 DEFENCE, 
 
 costs of witnesses for, 107. 
 DELIRIUM TREMENS, 
 
 crime committed under, 145. 
 DEMOLISHING BUILDINGS, 506, et seq. 
 DEPOSITIONS, 
 
 assigning perjury on contradictory, 362, 372. 
 DESCRIPTION. See Indictment. 
 
 of locus in quo in charges of night poaching, 960. 
 DESERTION, 
 
 seducing soldiers, &c, to, 258, et seq. 
 
 by soldiers or sailors, consequences of, to the deserter, 259. 
 DESTROYING BUILDING, 566, et seq. 
 DESTROYING INFANTS, 
 
 in the womb. See Infant. 
 DETAINER, 
 
 forcible, 717, et seq. See Forcible Entry. 
 DIRECTOR OF PUBLIC PROSECUTIONS, 
 
 costs of unreasonable prosecution, 4. 
 DISCHARGE OF JURY, 
 
 without verdict, 52 n. 
 DISCLOSING OFFICIAL SECRETS, 430, et seq. 
 DISEASE, 
 
 failure to cure, not indictable, 204. 
 DISOBEDIENCE, 
 
 to orders of magistrates, &c, 883, et seq. 
 
 when indictable, 204, 884. 
 
 to order to maintain children, 884. 
 
 to order of king, 884. 
 
 to order to remove a pauper, 884. 
 
 to nullified order, 884. 
 
 to order to reinstate member of friendly society, 884, 888. 
 
 to bastardy order, 884 n. 
 
 order must be personally served, 8S5. 
 
 order to pay expenses of prosecution, 885. 
 
 public officer disobeying orders, 885. 
 
 order to pay a church rate, 886. 
 
 order to pay costs, 887, 888. 
 
 order to restore premises to tenant, 887, 888. 
 
 on trial of indictment court will not go behind order, 888. 
 DISORDERLY HOUSES. See Nuisance. 
 
 within Vexatious Indictments Act, 2. 
 
 feme covert indictable for keeping, 151, 741. 
 
 inns, bawdy-houses, gaming-houses, &c, common nuisances, 740, et seq. 
 
 keeping, 741.
 
 Index. 999 
 
 DISORDERLY HOUSES — continued. 
 
 manner of proceeding against the keepers, 743. 
 indictment, evidence, 744, et seq. 
 DISSENTING CHAPELS, 
 rioters destroying, 506. 
 disturbance of worship in, 655. 
 foreign congregation, 655. 
 marriages in, 680, 694, 695. 
 DISSENTING MINISTER, 
 
 assaulting, whilst doing duty, 656. 
 DISTRESS, 
 
 forcible entry for, 722. 
 resisting, 724. 
 
 rescuing goods taken under, 8S2. 
 DISTRICT COUNCIL, 
 
 powers and duties of, 793, 842. 
 DISTURBANCE, 
 
 of public worship, 652, et seq. 
 statutes concerning, 652. 
 
 brawls in church or churchyard, 652. 
 
 cathedrals, within statute, 653. 
 
 persons keeping order in church not within statute, 653. 
 
 disturbances during time of divine service, 653. 
 
 the party must maliciously, wilfully, or of purpose molest the 
 
 minister, 654. 
 persons disturbing congregation may be apprehended, 654. 
 rescuing offenders, 654. 
 breaking church windows, 655. 
 obstructing minister doing duty, 655. 
 wilfully obstructing burial service, 655. 
 disturbing dissenting congregations, 656. 
 foreign congregation within section, 656. 
 disturbance must be wilful and of purpose, 656. 
 certiorari for indictment, 656. 
 Roman Catholics, 657. 
 protection of uncertified places, 657. 
 disturbances in churches, 657. 
 conspiracies or riots in churches, &c, 658. 
 DITCHES, 
 
 nuisance to highway from, 785 
 DIVINE WORSHIP. See Disturbance. 
 DIVORCE, 
 
 when a defence in bigamy, 662. 
 DOCUMENTS, 
 
 description of, in indictments, 25. 
 DOG, 
 
 keeping unmuzzled, 753. 
 DRUGS. See Poison. 
 administering, 275. 
 
 DRUNKENNESS, 
 
 when an excuse for crime, &c, and when not, 143, 144. 
 effect on intent, 144. 
 
 DUEL, 
 
 when an affray, 588. 
 
 when murder," 695, et seq. 
 
 challenging to fight, 593. See Challenging. 
 
 shooting in, 942. 
 
 DWELLING-HOUSE. See House. 
 
 (12 Anne) of stealing forty shillings in, exemption of apprentices, 118. 
 riotously demolishing, 566, et seq.
 
 1000 Index. 
 
 E. 
 
 EAVES-DROPPER, 
 
 indictable at the sessions, and punishable by fine, &c, 752. 
 
 ELECTION, 
 
 false declaration by candidate or agent perjury, 324. 
 false answers to questions, 398, 457. 
 
 chief officers of corporations absenting themselves from, 420. 
 offences at, 443, et seq. 
 
 bribery. See Bribery. 
 
 treating, 449. 
 
 undue influence, 449. 
 
 false declaration as to expenses, 450. 
 
 improper withdrawal of election petition, 450. 
 
 trial, 451. 
 
 costs, 453. 
 
 certificate of indemnity, 453. 
 
 decisions on repealed statutes, 455. 
 
 Ballot Act, 457. 
 
 municipal elections, 457, 460. 
 
 definitions, 460. 
 
 personation, 45S. 
 
 corrupt practices, 461. 
 
 county council elections, 461 n. 
 
 false statements as to conduct or character of candidate, Add. 
 election writs, 
 
 of neglecting or delaying to deliver, 462, et seq. 
 
 EMBRACERY, 
 
 what it consists in, 486. 
 corrupting or influencing jurors, 486. 
 how far justifiable, 486. 
 punishment, 486. 
 dissuading a witness, 487. 
 Witnesses Protection Act, 487, et seq. 
 ENEMIES. 
 
 piratical acts done under commission of. 261. 
 of the King, adhering to, 266. 
 
 ENGINES, 
 
 riotously destroying steam engines, or engines for working, &c, mines, 565. 
 working so as to be a nuisance, 759. 
 using on or near highway, 789, 791. 
 
 ENLISTMENT. 
 
 Foreign Enlistment Act, 251. 
 
 ENTERTAINMENT, 
 
 unlicensed places of, 742 n. 
 ENTRY. See Forcible Extry. 
 on a close by poachers, 956, 959. 
 
 ESCAPE. See Prison Breaking. 
 definition of. 889. 
 by the party himself, 889. 
 evidence on an indictment for, 890. 
 
 arrest of persons escaping from Great Britain to Ireland, &c, 890. 
 suffered by officers, 890, et seq. 
 
 must be after an actual and justifiable arrest, and continuing impri- 
 sonment for a criminal matter, 890, 891. 
 voluntary, 891. 
 negligent, 892. 
 
 by admitting to bail, 893. 
 of retaking, 893, 894.
 
 Index. 1001 
 
 ESCAPE — continued. 
 
 after a voluntary escape, 893. 
 negligent escape, 894. 
 proceedings for, by indictment, presentment, or summarily, 894. 
 indictment and trial, 894, 895. 
 evidence, S94, 896. 
 punishment, 896. 
 
 in cases of voluntary escapes, 896. 
 negligent, 897. 
 suffered by private persons, 898. 
 
 punishment, 898. 
 actively aiding escapes, 904, et se/j. See Rescue. 
 
 of convicts sentenced to penal servitude, 914, et seq. 
 EVIDENCE, 
 
 producing coining tools, 219. 
 
 on indictments respecting coining instruments, 230. 
 
 for uttering false money, 235. 
 of previous conviction, 235. 
 of being feme covert, 159. 
 on indictment for perjury, 368. 
 dissuading witness from giving, 486. 
 in conspiracy, 528. 
 in riot, 584, 585. 
 in libel, 632, et seq. 
 in bigamy, 714, et seq. 
 of disorderly houses, 745. 
 on indictment, &c, for nuisances to highways, 817, et seq. 
 
 for not repairing bridges, 858, et seq. 
 of former conviction, &c, on indictment for returning from trans- 
 portation, 919, et seq. 
 
 EXCAVATIONS near highway, 7S9. 
 EXCISE. See Revenue Laws. 
 EXCUSE includes authority, 226. 
 EXECUTION, 
 
 of judgment against convict, 111. 
 
 staying, in cases of conviction of infants, 117. 
 EXHIBITION, 
 
 indecent, indictable, 748, 751. 
 EXPENSES. See Costs. 
 EXPERT EVIDENCE, 
 
 in lunacy cases, 136. 
 
 EXPLOSIVES, 
 
 nuisance by keeping, 734. 
 gunpowder mills, 734. 
 naptha, 734, 735. 
 blasting stone, 736. 
 materials for fire-works, 736. 
 nuisance by putting on board ship, 736. 
 doing any act tending to cause explosion, 737. 
 defendant may give evidence, 737. 
 forfeiture of explosive, 737. 
 jurisdiction of court, 737, 738. 
 EXPORTING, 
 
 counterfeit coin, 223. 
 coin, hindering, 291. 
 EXPOSING, 
 
 children, 203. 
 indecently, 194, 747, et seq. 
 EXTORTION, 
 
 by public officers, 423, et seq. 
 
 indictment, trial, and punishment, 427, 428.
 
 1002 Index. 
 
 FALSE DECLARATIONS, 324. See Perjury. 
 
 as to election expenses, 450. 
 FALSE PRETENCE, 
 
 within Vexatious Indictments Acts, 2. 
 
 indictment for, after acquittal for larceny, 42. 
 
 amendment to indictment for, 60. 
 
 restitution of property, 86 n. , S7. 
 FARM BUILDING. 
 
 rioters destroying, 565. 
 FELO DE SE, 
 
 accessory before to, triable, 185. 
 FELONY, 
 
 where trial for misdemeanor, 62. 
 
 definition of, 192. 
 
 derivation of, 192 n. 
 
 punishment for, not punishable by any statute, 65. 
 
 forfeiture for, 108. 
 
 what words in statute create, 193. 
 
 when a statute makes an offence felony, which before was only a misde- 
 demeanor, an indictment will not lie for a misdemeanor, 193. 
 
 attempt to commit. See Attempt. 
 costs in. See Costs. 
 FEMALES. See Women — Feme Covert. 
 FEMALE CHILDREN. See Infant. 
 
 FEME COVERT, 
 
 property of, how laid, 36. 
 fines and sureties for, 66. 
 how far and from what crimes excused by the coercion of her husband, 
 
 146, et seq. 
 when an accessory to her husband's crime, 146. 
 husband and wife attempting suicide together, 146 n. 
 when responsible as much as a feme sole, 146-152. 
 receiving stolen goods jointly with her husband, 148. 
 
 receipt by husband from wife, 151. 
 not answerable for her husband's breach of duty, 151. 
 in inferior misdemeanors, 151. 
 conspiracy, 152. 
 
 coercion of husband when presumed, 152. 
 
 when not guilty of felony in stealing her husband's goods, 154. 
 larceny under Married Women's Property Act, 1882, 154. 
 proceedings by wife against husband, 154. 
 when a stranger can commit larceny by the delivery of husband's goods by 
 
 wife, 155-158. 
 not accessory for receiving her husband, 158, 179. 
 
 husband receiving wife, 179 n. 
 an indictment for any offence, not bad against husband and wife as such, 
 
 159. 
 evidence of being wife, 159. 
 
 husband may be accessory before the fact to his wife's crimes, 153. 
 wife principal and husband accessory in uttering forged notes, 153. 
 liability of husband for wife's acts, '274 n. 
 rules deducible from the cases, 154 (?/). 
 husband infecting wife. 204 n., 276 n. 
 cannot indict husband fof libel, 59S. 
 
 giving evidence against husband where marriage void, 715. 
 forcible entry by, 717 n., 721. 
 FERRYMAN, 
 
 extortion by, in taking tolls, 426.
 
 Index. 1008 
 
 FICTITIOUS PLAINTIFF. See Barratry. 
 FINES and SURETIES. See Surety. 
 
 in case of married women, 66. 
 FIRE, 
 
 demolishing house by, 567. 
 FIREWORKS. See Explosives. 
 
 keeping store of, 736. 
 FIRST-CLASS MISDEMEANANTS, 83 n. 
 
 FIRST OFFENDERS, 
 
 binding over, 85. 
 costs to be paid by, 86. 
 
 FIXTURES, 
 
 indictment for larceny of, after acquittal for larceny, 47. 
 FOOD, 
 
 unwholesome, 274. 
 
 indictable to mix noxious ingredients with human food, 274. 
 master liable for the sale of unwholesome food by his servants, 27-1 n. 
 meat unfit for, 275. 
 FOOT-BALL, 
 
 kicking about riotously on Shrove Tuesday, indictment for, 554 n. 
 FOOTWAY. See Highway. 
 FORCE, 
 
 in asserting a title, when justifiable, 717. 
 when indictable, 205. 
 FORCIBLE DETAINER. See Forcible Entry. 
 FORCIBLE ENTRY, 
 how committed, 717. 
 
 at common law, 717. 
 statutes, 718, et seq. 
 
 doubts upon them whether lessee for years, or copyholder ousted by 
 lessor or lord, could have restitution, 720. 
 persons who may commit the offence, 720. 
 man entering on his own or wife's premises, 720, 721. 
 joint tenant, 721. 
 
 possession in respect of which the offence may be committed, 721. 
 churches, &c, 721. 
 incorporeal hereditament, 721. 
 easement, 721. 
 way, 721. 
 common, 721. 
 mortgagor in possession, 722. 
 acts which will amount to, 722. 
 
 from circumstances of terror, 723. 
 circumstances which do not amount to, 723, et seq. 
 number of persons, 724. 
 forcible detainer, what, 724. 
 
 keeping armed men in house, 724. 
 keeping weapons, 724. 
 resisting distress, 724. 
 
 circumstances which do not amount to, 724, 725. 
 keeping out commoner, 725. 
 remedies, 725. 
 
 indictment, 725. 
 
 statement of force and violence, 725. 
 description of premises, 725. 
 
 of estate of the party expelled, 726. 
 repugnancy; statement of disseisin, &c, &c, 726, 727. 
 for entry and detainer, grand jury cannot find a true bill for one only, 
 
 tenant of land a competent witness, 727. 
 
 on indictment at common law, possession only need be shown, 727.
 
 1004 Index. 
 
 FORCIBLE ENTRY — continued. 
 
 on indictment under statutes, a seisin in fee, or existence of a term 
 
 must be proved, 727. 
 but court will not try an adverse claim, 727. 
 award of restitution, 728. 
 by what court, 728. 
 when', discretionary, 728. 
 where not, 728. 
 
 of the bar or stay to restitution, 729. 
 of superseding, 729. 
 of setting aside, 729. 
 how restitution shall be made, 729. 
 re-restitution, 730. 
 where conviction quashed, the Court of Queen's bench are bound to award 
 
 re-restitution, 730. 
 by an infant, 114. 
 
 FOREIGNER, 
 
 committing crime in ignorance of law, 160. 
 
 libels on, 629. 
 FOREIGN COIN. See Coin. 
 FOREIGN LANGUAGE, 
 
 libel in, 642. 
 
 FOREIGN MARRIAGE, 704. See Bigamy. 
 
 FOREIGN MARRIAGE ACT, 
 
 perjury under, 298. 
 
 FOREIGN STATES, 
 
 serving or procuring others to serve, 249, et seq. 
 
 without consent of the King, a misdemeanor at common law, 249. 
 intention of men enlisted immaterial, 249. 
 
 construction of the repealed statute, 249, 250. 
 Foreign Enlistment Act, 251, et seq. 
 equipping, &c, vessels, 253. 
 
 apprehension and trial of offenders, where, 254. 
 criminal information not granted to private prosecutor, 257. 
 disobedience to royal command 257. 
 neglecting to join the posse comitatus, 257. 
 Mutiny Act, persuading soldiers to desert, &c, 258. See Mutiny. 
 
 FORESTALLING, 
 
 statutes, &c, on the subject repealed, 476. 
 
 FORFEITURE, 
 
 forfeiture for felony abolished, 108. 
 disqualification for offices, 108, 111. 
 condemnation in costs, 109. 
 
 compensation to person defrauded or injured, 110. 
 disability of convict, 110. 
 administration of property of convict. 110. 
 disqualification from selling spirits, 111. 
 suffering punishment — pardon, 111. 
 FORGERY, 
 
 all are principals in, at common law; forgery being only considered a 
 misdemeanor, 17;). 
 
 not so under statutes, 173. 
 
 all who execute any part of a forged instrument principals, though 
 
 absent when it is completed, 173. 
 and though ignorant of the persons by whom the other parts are 
 executed, 173. 
 accessories in forgery, 173, 174. 
 of papers under Ballot Act, 457. 
 FRAUD, 
 
 when attempted not indictable, 202. 
 by public officers, 422.
 
 Index. 1005 
 
 FREE-MASONS, 
 
 assembly of, not unlawful, 579. 
 FRIENDLY SOCIETIES, 
 
 property of, how laid, 32. 
 
 rules, how proved, 390. 
 
 not unlawful assemblies, 575 n. 
 
 order to reinstate member, 885, 887. 
 FUNERAL, 
 
 disturbing, 055. 
 FURNACES, 
 
 nuisance from, 732, 733, 759, 760. 
 
 G. 
 
 GAMBLING. See Gaming. 
 GAME, 
 
 property in game at common law, !)44. 
 destroying in the night time, 944. 
 
 any person unlawfully destroying game or rabbits iu the night, in 
 
 any land, open or enclosed, 944. 
 any person unlawfully entering or being in any land by night for such 
 purpose, 945. 
 
 second offence, 945. 
 
 third offence, a misdemeanor, 945. 
 
 any person found on any land committing any such 
 offence may be apprehended by the owner, gamekeeper, 
 &c, 945. 
 
 such offender assaulting any person guilty of a mis- 
 demeanor, 946. 
 prosecutions for offences punishable on summary conviction to 
 be commenced within six months, 946. 
 other prosecutions within twelve months, 946. 
 convictions made evidence, 946. 
 
 three or more together entering or being in land by night, for 
 the purpose of taking game or rabbits, being armed with 
 offensive weapons, 946. 
 
 what shall be considered night, 947, 952. 
 what shall be deemed game, 947. 
 extending the previous Act to highways, 947. 
 taking hares and rabbits in warrens, 947. 
 search of persons found with game, &c, 948. 
 
 what is the commencement of a prosecution, 949. 
 tame game, 949. 
 
 allegation of previous convictions, 950. 
 authority to apprehend poachers, 951. 
 
 to apprehend persons found committing indictable 
 offence at night, 952. 
 assault whilst keepers are attempting to apprehend, 953. 
 authority of keeper to apprehend, 954. 
 of the being armed, one being armed sufficient, 954. 
 not if the others are ignorant that he is so, 954. 
 a constructive arming sufficient, 954. 
 what are offensive weapons, 954. 
 what sufficient evidence of being in the land, 956. 
 whether an entry by one in the presence of two others is 
 
 sufficient, 956. 
 what is an entry within the statute, 959. 
 must be shown to be associated, 959. 
 of the intent to kill game in the close laid in the 
 
 indictment, 960. 
 the indictment must specify the close, 960.
 
 1006 Index. 
 
 GAME — continued. 
 
 i-equisites of the indictment, 961. 
 
 joinder of counts, 962. 
 
 not necessary to disprove consent of owner, 963. 
 
 GAMING. See Nuisance. 
 
 gaming-house a nuisance, 741, 743, 746. 
 
 cock-pit considered so, and indictable, 742. 
 
 proceedings against keepers of, 743. 
 
 place used for betting, &c, 745, 746, Add. 
 resorting to, 746, Add. 
 
 what is a common gaming-house, 745, 746. 
 
 club where unlawful games are played, 747. 
 playing at cards. &c, as a recreation, and for moderate sums, no offence, 929. 
 
 but excessive gaming is, 929. 
 
 former Acts repealed, 929. 
 
 playing in gaming-house unlawful, 929. 
 
 unlawful games, 929. 
 
 excessive gaming, 930. 
 
 cheating at play punishable, 930. 
 
 tossing for coins, 930. 
 
 cases, 930, 931. 
 
 inciting infants to bet or borrow money, 931, et seq. 
 
 GAMING-HOUSE. See Nuisance. 
 
 within Vexatious Indictments Act, 2. 
 
 plea of autrefois acquit, 41. 
 
 common indictment for keeping, 743. 
 
 manner of proceeding on, 744, 745. 
 what is a resorting to, 929 n. 
 
 GAOLER, 
 
 oppression, &c, by, 418. 
 
 forcing persons to give evidence, 418. 
 suffering his prisoner to escape, 418, 892, 900, et seq. 
 extortion by. 426. 
 putting prisoners in irons, 892 n. 
 
 GAS-PIPES, 
 
 laying in highway, 789. 
 
 GLANDERED HORSE, 
 
 offence to bring such through streets, 275. 
 GOLD. See Coin — Bullion. 
 
 GOVERNORS OF COLONIES, 
 
 offences by, how tried, 25. 
 
 GOVERNMENT, 
 
 libels on, 621. See Sedition. 
 
 GRAND JURY, 
 
 perjury before, 300. 
 
 how proved, 300. 
 
 presentment of, not libel, 599. 
 
 presenting public bridge as out of repair, 871. 
 
 GROAT, 
 
 meaning of, 238. 
 
 GUARDIANS OF UNIONS, 
 
 property of, how laid, 28. 
 
 GUILTY KNOWLEDGE, 
 
 evidence of. in coining cases, 241. 
 
 GUNPOWDER. See Explosives. 
 mills, &c, when a nuisance, 734. 
 
 GUNS, 
 
 furnishing foreign state with, 254.
 
 Index. 1007 
 
 H. 
 
 HALL MARK. See Bullion. 
 
 HARD LABOUR, 82. See Punishments. 
 
 HARE. See Game. 
 
 killing, 947. 
 HEALTH, 
 
 public, offences affecting, 272. 
 HIGH SEAS, 
 
 offences on. See Venue. 
 murder on, 13, 17. 
 HIGHWAY, 
 
 amendment of indictment for nuisance to, 59. 
 no right of public meeting in, 580. 
 ditch dug across, 731 n. 
 
 no indictment lies for not repairing private road set out by Act of Parlia- 
 ment, 201, 806 n. 
 what is a public highway, 760. 
 cul de sac, 761. 
 right all over a close, 761. 
 common or forest, 762. 
 cartway, or footway, 762 
 towing-path, 762, 76-1, 784. 
 tramway or railway, 762. 
 the number of persons using or repairing a way will not make it one, if 
 
 it be not common to all, 762. 
 the freehold and profits belong to the lord of the soil, 763. 
 by dedication to the public, 763, el seq. 
 trustees may dedicate, 761. 
 intention to dedicate, 451, 764, 765, 766. 
 drainage commissioners, 764. 
 canal company, 764, 767. 
 acts of lessees not sufficient, 764. 
 there must be the consent of the owner in fee, 764. 
 where the consent of the owner may be inferred, 765, 766. 
 from long user by the public, 767. 
 repairs explainable, 767. 
 where there has been a compulsory obligation to permit a qualified 
 
 passage, 767. 
 road set out under an enclosure act as a private road, 767. 
 partial dedication, 768. 
 for a limited purpose, 769. 
 subject to interruption, 769. 
 subject to impediments, 769. 
 
 cellar flaps, 769. 
 correct distinction as to, 769. 
 access across footway, 770. 
 ploughing up path, 770. 
 for limited time, 769, 771. 
 roads made public by statutes during the continuance of such statutes, 
 
 771. 
 used after expiration of acts, 771, 772. 
 old highway made turnpike, 773. 
 no interruption can destroy a highway, 773. 
 highways widened, changed, &c, 773. 
 
 an ancient highway might be changed by writ of ad quod damnum^ 773. 
 by act of God, 773. 
 washed away by sea, 773, 774. 
 landslip, 774. 
 power given to justices to widen and change highways, 775.
 
 1008 Index. 
 
 HIGHWAY — continued. 
 
 diverting, stopping up, &c, highways, bridleways, and footways, 775, 
 
 et seq. 
 surveyor paring away banks, 775 u. 
 surveyor to apply to justices to view, 770. 
 inspection by justices, 776. 
 notice, 770. 
 consent of owner, 776 n. 
 
 of parish council, 780 n. 
 certificate, 777. 
 
 nearer and more commodious, 777 n., 778. 
 appeal, 77S, 779. 
 new highways, &c, to be public highways, 780. 
 parties liable to repair old, liable to repair new ways, 780. 
 dividing highways when the boundaries of the parish are in the middle, 
 780. 
 highways may be changed by particular statutes, 780, 781. 
 road continued under inclosure award, 781, et seq. 
 order of justices presumed, 783. 
 
 towing-path not affected by Act to change course of river, 784. 
 changed by individuals, 784. 
 nuisances to by obstruction, 785. 
 ploughing up, 785. 
 digging across, 785. 
 using footway with carts, 785. 
 raising height of stile, 785. 
 erecting gate, 785. 
 suffering ditches to be foul, 785, 805. 
 darkening by building houses, 785 n. 
 trees overhanging, 785. 
 carriages left and excessive burdens, 786. 
 all unauthorised obstructions indictable, 786. 
 instances of obstructions, 786, et seq. 
 distributing handbills, 786. 
 waggon unloading. 786. 
 stage-coaches plying, 786. 
 causing crowds to assemble, 787. 
 sawing timber, 787. 
 lowering casks into cellar, 787. 
 building or repairing houses. 787. 
 processions, 787 n. 
 
 not excused by plea of the party's business, 787. 
 laying railways on, 788. 
 tramways, 788. 
 telegraph posts, 788. 
 gas pipes. 789. 
 excavations near to, 789. 
 steam engines, 789, 791. 
 windmills, 789. 
 bridges, 790. 
 projecting lamp, 790. 
 narrowing highways, 790. 
 ships adjoining, 790, 791. 
 as to breadth of roads, 790-793. 
 no defence that an alteration is more useful for other purposes of the 
 
 road, 791. 
 unless authorised by a statute, 791. 
 
 and the conditions of the Act must be fulfilled, 791, 792. 
 railway carried over road by bridge, 792. 
 duty of district council to protect, 793. 
 body corporate indictable, 793. 
 nuisances to, by not repairing, 793, et seq. 
 
 obligation of the parish to repair, 793, et seq. 
 of common right. 793.
 
 Index. 1009 
 
 HIGHWAY — continued. 
 
 effect of particular statutes upon, 794. 
 no agreement can exonerate a parish, 795. 
 adoption by parish unnecessary, 795. 
 
 no highways to be repaired by a parish unless the party dedicating make 
 them to the satisfaction of the surveyor, &c, 795. 
 cases hereon, 796. 
 
 obstructing roads dedicated to the public but not repairable, 796. 
 when the parish lies in two counties, 797. 
 highways divided and allotted by justices, 797. 
 liability does not extend to keeping the road from being dirty, or to 
 
 widening it, 798. 
 road in aliend parochia, 799. 
 extra-parochial place, 800. 
 obligation of subdivisions of a parish to repair, 800. 
 by prescription, 800. 
 all highways within a township, 801. 
 ratione tenurce cannot exist, 801, 802. 
 obligations of individuals to repair, ratione tenurce, 802. 
 person inclosing lands adjoining highway, 802, 803. 
 of a road made in pursuance of a writ of ad quod damnum, 803. 
 turnpike acts, 803. 
 
 agreements by trustees of turnpike roads with persons liable to 
 
 repair, 804. 
 repairs where roads have been turned, 804, 805. 
 parish not bound to repair fences or ditches, 805. 
 ' to and from ' exclude the termini, 805, 806. 
 inclosure commissioners cannot throw the repair of private roads on the 
 
 parish, 806. 
 repair of road under Metropolis Local Management Act, 1855, 807. 
 indictment, or information for nuisances to, 807, et seq. 
 presentment abolished, 807. 
 
 mode of proceeding before justices where highway is out of repair, 807. 
 where justices may order an indictment, 808, 809. 
 information in the Queen's Bench, 809. 
 
 in what cases granted, 809. 
 mandamus not granted, 809. 
 indictment, 809. 
 
 form of, 809, et seq. 
 
 a person bound ratione tenures indictable, though not resident, 811, 
 813. 
 defence under general issue or special plea, 812, et seq. 
 instances where special plea necessary, 813. 
 parish must show who are liable to repair, and what parts of the 
 
 highway, 814. 
 traverse of obligation to repair, 816. 
 evidence, 817. 
 
 of former conviction, when conclusive, 817, et seq. 
 of former acquittal, no proof that parish is not bound, 818. 
 prosecutor competent, 819. 
 certiorari, 819. 
 new trial, grantable, 819. 
 the judgment, 820. 
 levying and application of fines, 820. 
 
 when turnpike roads are indicted, the court may apportion the fine 
 and costs between the inhabitants and trustees, 822. 
 costs awarded by the court, 822. 
 
 where there has been a removal by certiorari, 822, 823, 824, 825. 
 payment of expenses under an agreement at a vestry, &c, 825. 
 meaning of terms in the Highway Act, 826. 
 public bridge not a highway, 826. 
 main roads maintained by county council, 826. 
 Highway Acts, 827. 
 
 Highway District, 827. 
 vol. i. — 64
 
 1010 Index. 
 
 HIGHWAY —continued. 
 
 Highway Board, S27. 
 
 " duties of, 827. 
 power of justices to indict, 828. 
 
 where road is not highway, 828, 829. 
 power to charge repairs on person liable ratione tenurce, 829. 
 causing highway to be repairable by parish, 829, 830. 
 notices, how served, 831, 833. 
 roads in boroughs, 831. 
 
 person by erecting fences not to become liable to repair highway, 831. 
 definitions, 832. 
 stopping up highway, 833. 
 allowing and diverting, 834. 
 powers of urban authority, 834. 
 as to roads, 83 1 . 
 as to bridges, 834. 
 as to streets, 835. 
 powers of rural authority, 836. 
 
 appointment of surveyor, 837. 
 expenses, 837, 839. 
 defaulting authority, 837. 
 indictment of rural authority, 838. 
 main roads, 838, 839. 
 highway areas, 838. 
 bridges, 839. 
 
 unnecessary highways, 840. 
 definitions, 841. 
 transfer of powers to district council, 842 
 
 duties of district council, 842. 
 poaching on, 947. 
 
 searching suspected poachers, 948. 
 HIGHWAY BOARD, 
 
 property of, how laid, 29. 
 HINDERING EXPORTATION OF COIN, 291. 
 HOMICIDE, 
 
 felonious; the felonious intention in, 195 n. 
 HORSE, 
 
 taking glandered, through public streets, indictable, 275. 
 HORSE RACING, 
 
 nuisance by, 743. 
 HOUSE. See Dvvelling-House. 
 
 pulling down by persons riotously assembled, 566. 
 HOUSE-BREAKING, 
 
 plea of autrefois convict in, 39-41. 
 having implements of, with felonious intent, 199. 
 HUSBAND. See Feme Covert. 
 
 I. 
 
 IDENTITY, 
 
 proving previous conviction, 71. 
 
 IDIOTS, 
 
 how far capable of committing crimes, 118. 
 distinction between, and lunatics, 119, 120. 
 proceedings with respect to, 139. 
 disposal of guilty, 141. 
 IGNORANCE, 
 
 in what cases an excuse for the commission of a crime. 160.
 
 Index. lull 
 
 ILL-TREATMENT, 
 
 of servants, of apprentices, &c. See Apprentices — Servants. 
 
 of lunatic. See Lunatic. 
 IMPORTING, 
 
 counterfeit coin, 222. 
 IMPRISONMENT, 
 
 when commencing, 64, 85. 
 definition of month, 1. 
 
 substituted for penal servitude, 79. 
 
 INCAPACITY to commit crimes. See Capability. 
 
 INCHING, 
 
 to crime, 170, 171. 
 to riot, 557, et seq. 
 to bigamy, 664. 
 to commit murder, 906. 
 
 INCLOSURE ACT. See Highway. 
 
 INCORRIGIBLE ROGUES, 
 
 whipping, 84 n. 
 
 INDECENCY, 
 
 indecent exposure and open lewdness indictable as a nuisance, 194, 747, 
 
 et seq. 
 costs of prosecution, 100. 
 exposing a naked dead body, 748. 
 indecent exhibition, 748. 
 indecent language, 748. 
 what is a public place, 748. 
 
 urinal, 748. 
 
 omnibus, 748. 
 
 private room, 749. 
 
 railway carriage, 749 n. 
 
 highway, 749. 
 whether the place need be public, 749. 
 fornication, 750. 
 sodomitical practices, 750. 
 bathing, 750. 
 showing monstrosity, 751. 
 obscene prints, &c, 751, 752. 
 punishment, 752. 
 INDECENT ASSAULT, 
 
 within Vexatious Indictments Act, 2. 
 costs, 95. 
 INDIAN OFFICERS, 
 
 extortion by, 426, et seq. 
 selling offices, 435. 
 
 INDICTABLE OFFENCES, 192-206. 
 felonies, 192. 
 
 by statute, 192. 
 misdemeanors, 193. 
 misprisions, 194. 
 attempts to commit felonies, 195. 
 
 misdemeanors, 196. 
 disobedience to an order of council, 269, 884. 
 
 to a statute, 195. 
 
 to an order of magistrates, 883. 
 act done with criminal intention sufficient, 195. 
 offences of a public nature, 197. 
 procuring base coin with intent to utter, 198. 
 having implements of housebreaking, 199. 
 offences created by statutes, when indictable. 199. 
 
 not indictable, 201. 
 cases not indictable enumerated, 202.
 
 1012 Index. 
 
 INDICTABLE OFFENCES — continued. 
 
 abandoning child with intent to burden parish; 203. 
 nonfeasance and particular wrong not in general indictable, 204. 
 trespasses not in general indictable, 204. 
 effect of repeal of statutes treating offences, 205. 
 under summary jurisdiction acts. 206. 
 under Prevention of Cruelty to Animals Act, 2U6. 
 INDICTMENT, venue in. See Venue. 
 description of documents, 25. 
 
 coin and bank notes. l'G. 
 
 venue in the margin, local description. 25 
 
 interpretation of word ' indictment." 26. 
 description of property of partners, 20. 
 
 counties, 27. 
 
 guardians of poor, &c, 28. 
 
 highway trustees, &c, 29. 
 
 turnpike trustees, 29. 
 
 commissioners of sewers, 29. 
 
 joint-.stock banks, 30-32. 
 description of property of friendly societies, 32. 
 
 savings bank, 34. 
 
 loan societies, 35. 
 
 benefit building societies, 35. 
 
 trades unions, 35. 
 
 custom-house property, 36. 
 
 post office, 36. 
 defects in indictments, 36. 
 
 immaterial defects, 36. 
 
 time for taking formal objections, 37. 
 
 formal conclusion unnecessary, 37. 
 
 wrong reign, 41. 
 
 bad, no bar to subsequent indictment, 48. 
 for several offences at same time. 49. 
 
 prisoner entitled to copy. 40 n. 
 
 defects cured by verdict. 38. 
 pleadings to indictment. See Pleas. 
 traverse of indictment. See Postponement of Ti:ial. 
 amendment of indictment. See Amendment. 
 indictment for misdemeanor, facts amounting to felony, 62. 
 indictment for full offence, conviction of attempt, 62. 
 for offence after previous conviction, 68. 
 any number of previous convictions may be charged, 70. 
 for aiding and abetting, 169, 180-190. 
 vexatious indictments. See Vexatious Indictments. 
 against accessories. See Accessory. 
 
 for receiving, paying, putting off, &c, counterfeit coin, 236-238, 244. 
 for seducing soldiers, &c, 25!*. 
 for piracy, 268. 
 
 for offences against revenue laws. 285. 
 perjury on bad, 318. 
 for perjury, 330. 
 
 for taking unlawful oaths, 407. 410. 
 compounding, 413. 
 
 for neglect of duty by persons in office. 421. 
 for extortion, 427. 
 for bribery or undue influence. 448. 
 for making false answers at election. 457. 
 for offences against Slave Trade Acts, 470. 
 for barratry, 4S9. 
 for conspiracy, 509. 
 for a riot. &c, 503. 
 for libel, 603, 630. 
 for bigamy, 714, 716. 
 for a forcible entry and detainer, 725, et seq.
 
 Index. 1013 
 
 INDICTMENT — continued. 
 
 for keeping disorderly houses, 741, 744. 
 for nuisances in general, 755. 
 
 to highways, 781, et ser/., 809. 
 
 for obstruction, 785. 
 
 for non-repair, 793. 
 
 general issue, or special plea, when necessary, 812. 
 
 traverse of obligation to repair, 816. 
 
 special plea by parish, when necessary, 813. 
 to public bridges, 874. 
 
 pleadings, — special plea, &c, 876. 
 for disobedience to orders of magistrates, 884. 
 
 must show an order made, 884. 
 for escapes suffered by officers, 894. 
 for prison-breaking, !)02. 
 for a rescue, 905. 
 
 for aiding attempts to escape, 910. 
 for returning from transportation, 919, 924. 
 for gaming, 930. 
 for destroying game in the night, 958, 960, 961. 
 
 INDUSTRIAL SOCIETY. See Friendly Society. 
 
 INFANT. See Child. 
 
 committing misdemeanors, 113. 
 capital crimes, 114. 
 distinction of ages, 114- 
 in the civil law, 115 n. 
 murder, 115-117. 
 rape, 117. 
 
 larceny as bailee, 117. 
 new statutory felonies, 117. 
 treasons, 118. 
 
 how far statutes extend to cases of infants, 118. 
 not excused from the commission of a crime by the coercion of a parent, 146. 
 not punishable as rioter, if under the age of discretion, 569. 
 when indictable for non-repair, 875. 
 inciting to bet or borrow money, 931, et seq. 
 INFECTION, 
 
 postponement of trial, on account of, 53. 
 spreading infectious disorders, 274, et seq. 
 murder by, 274. 
 nuisance by, 753. 
 INFORMATION, 
 
 not granted to private prosecutor for offences against Foreign Enlistment 
 
 Act, 257. 
 when not on oath, 300. 
 for libel, 603 n. 
 
 to extort apology, 646. 
 for non-repair of highways, 809. 
 for non-repair of public bridge, 872. 
 on penal statutes, 
 
 compounding, 413, et seq. 
 for sending a challenge, 594. 
 
 INGROSSING, 
 
 statutes, &c, on the subject repealed, 476. 
 INN, 
 
 disorderly, a nuisance and indictable, 739. 
 innkeepers refusing to receive travellers, 739, 740. 
 
 INNOCENT AGENT, 165, 166. 
 INNUENDO, 
 
 averment by, in indictments for perjury, 363, et seq. 
 averment by for indictments for libel, 631, 632.
 
 1014 Index. 
 
 INOCULATING. 
 
 for smallpox, 273. 
 INQUEST, 
 
 costs of attending, 101. 
 
 preventing, 943. 
 INSANE PERSONS. See Capability — Luxatics. 
 INSTRUMENTS. See Coining-Instruments. 
 TNTENT, 
 
 to commit a felony or misdemeanor, 195 n. 
 
 an act resting in bare intention not indictable l!tr> n. 
 
 but an act done, and a criminal intention joined thereto, are sufficient, 195 n. 
 
 intent to utter base coin, 198. 
 
 intent to break houses, 199. 
 INTERPRETATION, 
 
 of words in statutes, 1. 
 INTIMIDATION, 
 
 at elections, 449. 
 
 of jury, 486. 
 
 of witness, 487. 
 
 by workmen, 548, et seq., 971, et seq. 
 INTOXICATION. See Drunkenness. 
 IRELAND. 
 
 marriages in, 700, et seq. 
 
 J. 
 
 JEWS. 
 
 marriages of, 674, 675, 681, 685, 687, 
 
 libel on body, 628. 
 
 libel on religion, 617. 
 JOINT FELONY, 
 
 when acquittal a bar to indictment for several felony, 46. 
 JOURNEY, 
 
 offence on. See Venue. 
 J EDGE, 
 
 offering a bribe to, 197. 
 
 witness to perjury, 377. 
 
 oppression by, how punishable, 416. 
 
 libel on, 624. 
 JUDGE'S NOTES, 
 
 inadmissible in evidence. 376. 
 JUDGMENT, 
 
 judgments during assizes or sittings, 63. 
 
 of death, 64. 
 
 recording judgment of death, 64. 
 
 penal servitude instead of death, 65. 
 
 general punishment for felonies, 65. 
 
 hard labour and solitary confinement, 66. 
 
 previous convictions, 66. 
 form of indictment, 68. 
 conduct of trial, 68. 
 
 Prevention of Crimes Act. 'if). 
 
 police supervision, 69. 
 
 previous convictions under the 7 & 8 Geo. 4, c 28, s. 11. 70. 
 
 other previous convictions charged, 70. 
 
 form of certificate of conviction. 71. 
 
 proof of identity. 71. 
 
 proof of previous conviction where prisoner sets up a good character, 72. 
 
 penal servitude, 73, et seq. 
 
 tickets of leave, 75.
 
 Index. 1015 
 
 JUDGMENT — continued. 
 
 special offences by persons twice convicted, 77. 
 
 provision as to children of woman twice convicted, 79. 
 
 hard labour, 81. 
 
 juvenile offenders, 81. 
 
 fines of sureties of the peace, 84. 
 
 sentence where prisoner already in prison, 85. 
 
 sentence at one time for several offences, 85. 
 
 restitution of property, 86. See Restitution. 
 
 execution of judgment against convict, 111. 
 JURISDICTION, 
 
 plea to. See Pleas. 
 
 of Admiralty. See Venue. 
 JURY, 
 
 discharge of without verdict, 5:2 n. 
 JURYMAN, 
 
 tampering with, bribing, or attempting to bribe, 197. 
 
 corrupting and influencing juries, 486. 
 
 separating himself in trial for murder, 52 n. 
 JUSTICE, 
 
 interfering with course of, indictable, 197. 
 JUSTICE OF THE PEACE, 
 
 acting as, not being qualified, not indictable, 200 n., 202. 
 
 perjury before, where warrant illegal, 301. 
 
 proceedings before, how proved, 386. 
 
 administering oath without jurisdiction, 401, 409. 
 
 negligence by, 580. 
 
 duty in suppressing riot, 582. 
 
 oppression, &c, by, how punishable, 416. 
 refusing to grant ale licences, 417 
 
 extortion by, 425. 
 
 suppression of affrays by, 592. 
 
 libel on, 624. 
 
 orders of, disobedience to, 883, et seq. See Disobedience. 
 
 power to disperse unlawful assemblies, 571, et seq. 
 JUSTIFICATION, 
 
 plea of, in libel, 644, et seq. 
 
 under Lord Campbell's Act, 648. 
 JUVENILE OFFENDERS, 81. 
 
 whipping of, 84. 
 
 K. 
 
 KING, 
 
 his money, what is, 207. See tit. Coin. 
 
 disobedience to his commands to return or to stay at home, or assist at his 
 
 council, 257, 884. 
 his enemies, adhering to, when piracy, 266. 
 libels on, 619. 
 
 L. 
 LAMP, 
 
 projecting over highway, 790. 
 LANDLORD, 
 
 when responsible for acts of tenant, 756, et seq. 
 LANDSLIP, 
 
 highway destroyed by, 774.
 
 1016 Index. 
 
 LARCENY, 
 
 acquittal for, no bar to indictment for false pretences, 42. 
 acquittal for, no bar to indictment for larceny of fixtures, 47. 
 
 of one article no bar to indictment for larceny of another, at same 
 time, 48. 
 after previous conviction. See Previous Conviction. 
 
 LARCENY AS BAILEE, 
 
 plea of autrefois acquit, 45. 
 LATIN, 
 
 marriage in, 666. 
 
 LETTER, 
 
 provoking breach of peace, 626. See Challenging. 
 publication of libel by, 634, 640, 641. 
 LEWDNESS. See Indecency. 
 
 open lewdness and indecent exposure indictable, 747. 
 
 LIBEL, 
 
 within Vexatious Indictments Act, 2. 
 definition of, 595. 
 
 what publications libellous, 595. 
 slanderous words, 596. 
 by description or circumlocution, 596. 
 mode of expression, 596. 
 name of person libelled in blank, 596. 
 libel on a body of men, 597. 
 
 remedies by action and indictment co-extensive, 597. 
 when party can justify that the libel was true, 597. 
 copied from another work, 597. 
 wife cannot indict husband, 598 
 privileged communications, 598. 
 petition to the King, 598. 
 
 Parliament, 598. 
 affidavits in judicial proceedings, 598. 
 presentment of grand jury, 599. 
 minister of military court of inquiry, 599. 
 sentence of court-martial, 599. 
 proceedings in courts of justice, 600. 
 proceedings in courts of Parliament. 600. 
 publications of proceedings in courts of justice, 600. 
 
 indecent evidence, 601, 603. 
 
 fair report, 601, 603. 
 
 speech of counsel, 601. 
 
 fair comment, 601. 
 
 before justices of peace, 601. 
 
 preliminary investigations, 602. 
 
 ex parte proceedings, 002. 
 
 proceeding before coroner, 602. 
 
 examination by registrar in bankruptcy, 602. 
 
 proceedings of public meetings, 602. 
 
 definition of newspaper, 602 n. 
 of public meeting. 603. 
 of proprietor, 604. 
 
 report of medical officer of health, 604. 
 
 of proceedings in Parliament, 604. 
 
 of papers printed by order of Parliament, 605. 
 comments upon literary productions, 606. 
 
 upon places of entertainment, 607. 
 
 upon candidate at election, 607. 
 sermons, 607. 
 confidential communications, 607. 
 
 in the conduct of a man's affairs, 607. 
 
 characters of servants, 607. 
 
 abusive letter, 607. 
 
 reproaches, 608.
 
 Index. 1017 
 
 LIBEL — continued. 
 
 in pursuance of legal or moral duty, 608, 609. 
 
 letters in defence of self or others, 608. 
 
 privileged matter sent by telegram, 608. 
 
 irrelevant matter, 609. 
 
 made with a view of investigating a fact, 609. 
 
 made in the proper course of a proceeding, 609. 
 
 complaints to public officials, 609, 610. 
 
 complaints to wrong official, 610. 
 
 expulsion from religious society, 611. 
 
 imputations on character of person about to marry relative, 611. 
 
 matters of military cognisance, 611. 
 
 matters of public interest, 611. 
 
 bishop's charge, 611 n. 
 
 comments on conduct of clergymen, 612. 
 
 proper meaning of a privileged communication, 612. 
 
 judge to say whether privilege exists, jury whether there is malice, 
 (\12. 
 publications against the Christian religion, 613. 
 statutes, 613. 
 
 Christian religion part of the law, 614, 615. 
 rational discussions allowed, 615. 
 libel on other religions, 617. 
 publications against morality, 617. 
 
 obscene play, 618. 
 liibels against the constitution, 618. 
 against the King, 619. 
 
 statutes, 619. 
 
 cases, 619, 620. 
 against Houses of Parliament, 621. 
 upon the Government, 621. 
 liberty of discussion, 622. 
 seditious libels, 622, 623. 
 
 on magistrates and administration of justice, 624. 
 contemptuous words spoken of and to magistrates, 625. 
 on private individuals, 626. 
 
 words spoken are not indictable, 626. 
 upon a man in his trade, 627. 
 upon a body of men, 628, 629. 
 upon a person deceased, 604 n., 629. 
 on foreigners of distinction, 629. 
 informations for libel, 604 n. 
 to extort apology, 646. 
 indictment for libel, 630. 
 
 when necessary to set out obscene passages, 603, 632. 
 innuendo, 631. 
 evidence — plea — trial, 632, et seq. 
 
 husband wife of prisoner may give evidence, 604. 
 
 writing and publication, 632. 
 
 what not a publication, 633. 
 
 composing unpublished paper, 633. 
 
 having libel in possession, 633. 
 
 taken in the mainour, 633. 
 
 giving libellous pamphlet, 634. 
 
 reading aloud or repeating libel, 634. 
 
 showing caricature, 634. 
 
 sealed letters containing libel, 634. 
 
 procuring another to publish, 635. 
 
 asking press to notice matter, 636. 
 
 publication by booksellers and proprietors of newspapers, 602, 636. 
 
 letter written by defendant's daughter, 637. 
 
 proceedings against printers of newspapers, 637. 
 
 printer's name to be printed on book, 637, 638. 
 
 libel must be produced, 639, 640.
 
 1018 Index. 
 
 LIBEL — continued. 
 
 variance, 639, 640. 
 
 must be proved to have been published in county laid in indictment, 
 
 640. 
 libel in foreign language, 642. 
 libel referring to other papers, 642. 
 depositions, gazette, &c, when evidence. 642. 
 criminal intention of defendant, G4*_'. 
 other libels to prove malice, 643. 
 evidence of a murder, 644. 
 
 meaning of a word in italics for jury, 644. 
 of ambiguous expressions, 644. 
 defendant's evidence, 644. 
 of indictable offence imputed, 645. 
 verdict. 646. 
 
 judge not bound to state his opinion whether writing a libel, 646. 
 judgment, 646. 
 punishment, 646. 
 Lord Campbell's Act, 647. 
 
 threatening to publish libel to extort money. 648. 
 punishment for defamatory libel. 64?. 
 proceedings upon trial, 648. 
 plea, 648. 
 
 evidence to rebut prima facie case of publication by agent. 649. 
 costs, 649, 651. 
 cases on act, 649, et seq. 
 plea of justification, 649, 650. 
 affidavits in mitigation of punishment, 650. 
 not triable at Quarter Sessions, 651. 
 averment of malice unnecessary, Add. 
 LICENCE. See Bigamy. 
 LICENSING JUSTICES, 
 
 misconduct of, 418. 
 LIGHTS, 
 
 making lights, &c, on the coasts as signals to smuggling vessels, 2b0. 
 LOAN SOCIETIES, 
 
 property of, how laid, 35. 
 LOCAL DESCRIPTION, 
 
 in indictment, 25. 
 LORD CAMPBELL'S ACT, 647. 
 LOTTERIES, 
 
 public nuisances, when, 754. 
 gaming in public place, 754. 
 prizes with packets of tea, 754. 
 missing word game, 754. 
 guessing winning horse, 755. 
 drawings by mutual societies, 755. 
 LUNACY COMMISSIONERS, 
 
 acting without qualification, 423. 
 
 LUNATIC, 
 
 what, 120. 
 
 distinction between and an idiot. 120. 
 
 how far capable of committing crimes, 120-143. 
 
 tests, 125, 
 
 evidence of experts, 136. 
 
 evidence of hereditary insanity, 137. 
 
 proceedings with regard to lunatic offenders. 139. 
 
 disposal of persons found guilty but insane, 141. 
 
 found insane before trial, 142. 
 custody of, 142. 
 marriage of, when void, 712.
 
 Index. 1019 
 
 M. 
 
 MAGISTRATES. See Justice of the Peace. 
 MAINTENANCE, 
 
 what it consists in, 477. 
 instances of it. 477. 
 when justifiable, 479. 
 
 in respect of an interest in the thing at variance, 479. 
 
 in respect of kindred or affinity, 480. 
 
 in respect of the relation of lord and tenant, master aud servant, 480. 
 
 in respect of charity, 480. 
 
 in respect of the profession of the law, 481. 
 punishment, 485. 
 MAINOUR, 633 n. 
 MALICE, 
 
 in libel, 612. 
 how proved, 642, 643. 
 MANSLAUGHTER, 
 
 indictment for, after acquittal for murder, 42. 
 aiders, abettors, and accessories, 172. 
 
 MANUFACTORY, 
 
 pulling down riotously, buildings or engines used in, 565. 
 offensive, carrying on, when a nuisance, 732, et seq. 
 
 MARINE BOARD, 
 
 perjury before, 297. 
 MARKET, 
 
 infringement, not indictable, 204. 
 
 clerk of, extortion by, -426. 
 
 farmer of, extortion by, 426. 
 MARKET OVERT, 89. 
 MARKSMAN, 
 
 assigning perjury, on affidavit by, 388. 
 MARRIAGE. See Bigamy. 
 
 presumption of, 159. 
 
 conspiracy to bring about, 506 
 MARRIAGE LICENCE, 
 
 procuring by false oath, 295, 324. 
 MARRIED WOMAN, 
 
 property of, how laid, 36. 
 
 punishment of, for misdemeanor, 66. 
 
 how far, and in what cases excused, by the coercion of husband, 146. 
 et seq. See Feme Covert. 
 MASTER AND APPRENTICE. See Apprentice. 
 
 MASTER AND SERVANT, 
 
 neglecting to provide for young servant, 204. 
 
 servant of baker putting noxious things into bread with master's knowledge 
 — master indictable, 203, 274. 
 
 servant polluting river, master indictable, 276. 
 
 nuisance caused by acts of servants, 758. 
 MASTIFF, 
 
 keeping unmuzzled, 753. 
 MATERIALITY. See Perjury. 
 
 a question forjudge, 319. 
 
 how alleged, 354, et seq. 
 MAYORS. See Corporation Officers. 
 MEASURE, 
 
 giving short, not indictable, 202.
 
 1020 Index. 
 
 MEDALS, 
 
 resembling coin, 211. 
 
 foreign, 246. 
 MERCHANDISE MARKS ACT, 
 
 offences against, within Vexatious Indictments Act, 3. 
 
 perjury under, 298. 
 MEETING. See Public Meeting. 
 MERCHANT SEAMAN'S ACT, 
 
 costs under, 91. 
 MERCHANT SHIPPING ACT, 
 
 venue in offences under, 19, Add. 
 
 MERGER, 
 
 of misdemeanor in felony, 62. 
 
 MILL, 
 
 riotously pulling down, 565. 
 
 MILLER, 
 
 indictment against, for receiving good barley and returning bad meal, 202 n. 
 extortion by, in taking toll, 426. 
 
 MINES, 
 
 riotously destroying engines, buildings, &c. used in collieries, mines, &c, 565. 
 
 MINISTER, 
 
 obstructing in doing his duty, 655. 
 
 MISDEMEANOR, 
 
 trial for, where offence proves to be felony, 62. 
 
 costs in, 94. 
 
 no accessories in, 174. 
 
 punishment of abettors, 184. 
 
 description of, 193. 
 
 punishment of, 66. 
 
 misprisions, 194. 
 
 what offences amount to, so as in be indictable, 194, 195. 
 
 compounding, 412. See Compounding Felony. 
 
 accessories in. See Accessories. 
 
 on trial for, no acquittal if offence a felony, 62. 
 MITIGATION, 
 
 of punishment for libel, 650. 
 MISPRISION, 194, 411. See Misdemeanor — Compounding Felony. 
 
 MISTAKE, 
 
 killing by, 160. 
 MOCK AUCTION, 504. 
 MONEY". See tit. Coin. 
 
 description of, in indictment, 25. 
 
 MONOPOLY, 
 
 an offence at common law, 476. ^ 
 
 MONSTER, 
 
 exhibiting for money, 751. 
 
 MONTH, 
 
 meaning of word, 1. 
 MORALITY, 
 
 publications against, 617. 
 MUNICIPAL ELECTIONS. See Elections. 
 
 MURDER, 
 
 indictment for, after acquittal for manslaughter, 42. 
 in prosecution by several of unlawful purpose, 167, 168. 
 accessories before fact in, 172. 
 MUTE, 
 
 prisoner who stands, how to be dealt with, 119 n. 
 
 MUTINY, 
 
 seducing soldiers and sailors to, 258, et seq. 
 at sea, 261. 264, et seq.
 
 Index. 1021 
 
 N. 
 
 NAME, 
 
 variance in proof of name of person, 58. 
 marriage and banns in wrong, 688, et seq. 
 
 NAPTHA. See Explosives. 
 
 storing large quantities, 735. 
 NAVIGABLE RIVER. See Rivers. 
 
 NE EXEAT REGNO, 
 
 disobedience to the writ of, 257. 
 NECESSITY, 
 
 for discharge of jury without verdict. 52 n. 
 NEGLIGENCE. 
 
 by public officers, 419, et seq. 
 by magistrate or commissioner of police. 580. 
 neglecting, &c, to deliver election writs. 462. 
 NEW TRIAL, 
 
 after acquittal on nuisances to highways, 819. 
 bridges, 878. 
 NIGHT, 
 
 definition of, 947. 
 NIGHT POACHING. See Game. 
 
 unlawful assembly, 571. 
 NOISES, 
 
 the making, when indictable, 732, 753. 
 NON COMPOS MENTIS. See Capability. 
 NONFEASANCE AND PARTICULAR WRONG, 
 
 not in general indictable, 204. 
 NON-REPAIR. See Highways. 
 NUISANCE. See Highways — Rivers — Bridges. 
 signification of, 731. 
 public and private, 731. 
 
 private only remediable by civil proceeding, 731. 
 public, when subject of action, 731. 
 public nuisances in general, 732. 
 
 offensive trades and manufactories, 732. 
 brewhouse, 732. 
 glass house, 732. 
 swine yard, 732. 
 tinman, 732. 
 tannery, 732. 
 
 what the existence of the nuisance depends on. 732. 
 offensive smells, 733. 
 other nuisances no defence, 733. 
 how far a noxious trade may be sanctioned, 733. 
 noxious fumes, 734. 
 embankment in harbour, 734 n. 
 gunpowder and combustibles, 734. 
 naptha, 735. 
 
 blasting stones near highway, 736. 
 fireworks, 736. 
 
 combustibles on board ship, 736. 
 Explosives Act, 737. 
 
 keeping grounds for pigeon shooting, 739. 
 disorderly inns and other houses, 739. 
 duties of keepers of inns, 739. 
 refusing to receive guest, 739. 
 bawdy-houses, 740.
 
 1022 Index. 
 
 NUISANCE — continued. 
 
 common gaming-houses, &c, 741, 743, 746. 
 
 cockpit, 742. 
 playhouses, &c, 742. 
 unlicensed places of public entertainment, 742 n. 
 
 stages lor rope dancing, 743. 
 horse racing within ten miles of Charing Cross, 743. 
 rooms for music and dancing, 743 n. 
 proceeding in prosecutions against persons keeping, 743. 
 
 persons acting as keepers, 744. 
 any person may give evidence, 744. 
 certiorari, 744. 
 indictment and evidence as to, 744, 745. 
 not necessary to give evidence of persons frequenting, 745. 
 nor of disorderly conduct, 745. 
 
 how proved that it is common gaming-house, 745, 746. 
 indictment triable at Quarter Sessions, 747. 
 punishment, 747. 
 betting-houses, 745. 
 what are, 745 n. 
 resorting, 746. 
 power of constables to enter gaming-houses, 747. 
 club at which unlawful games played, 747. 
 open lewdness and indecent exposure, 747. 
 naked body of dead infant, 748. 
 what is a public place, 748, 749, 750. 
 indictment for indecent practices. 750. 
 bathing, 750. 
 
 exhibiting monsters, &c, 751. 
 obscene prints, &c, 751. 
 pamphlet written with good intention, 751. 
 keeping obscene prints with intent to utter, 752. 
 punishment, 752. 
 eaves-droppers, 752. 
 common scold, 752. 
 cucking stool, 753. 
 noises in the night, 753. 
 spreading infection, 753. 
 mastiff unmuzzled, 753. 
 by statute, 753. 
 canal of polluted water. 753. 
 lotteries, &c. 754. 
 wagering or betting in streets, 754. 
 missing word game, 754. 
 of the removal of nuisances. 755. 
 prohibition of, by writ from Q. B., 755. 
 indictment for, 755. 
 where a landlord is liable for a nuisance from premises held by 
 
 tenants, 756. 
 landlord of bawdy-house, 757. 
 
 acts of servants in the course of employment, 758. 
 
 defendant cannot excuse himself by showing that it has 
 
 existed for a length of time, 758. 
 no length of time will legalise, 758. 
 particulars of the nuisance, 758. 
 judgment, 758, 759. 
 costs. 759. 
 
 steam-engines, 759. 
 
 to public highways, 760, et seq. See Highways. 
 
 to public rivers, 842. et seq. See Rivers. 
 
 to public bridges, 852, et seq. See Bridges.
 
 Index. 
 
 O. 
 
 OATHS. See Perjury. 
 
 power to administer. 295, et seq. 
 
 affirmations instead of, 323, et seq. 
 
 proof of authority to administer, 379, et seq. 
 
 administering without jurisdiction, 401, 409. 
 
 administering or taking unlawful oaths, 404, et seq. 
 
 not confined to oaths administered for seditious or mutinous pur- 
 poses, 404. 
 rendered more effectual by the 52 Geo. 3, c. 104, 405. 
 persons taking oaths by compulsion must disclose them within a limited 
 
 time, 406. 
 what shall be deemed an oath, 406. 
 if the oath administered was intended to make the party believe himself 
 
 under an engagement it is sufficient, 406. 
 the book used need not be the Testament, 406. 
 aiders and assisters deemed principals, 407. 
 indictment, 407, 410. 
 evidence, 408. 
 place of trial, 408. 
 
 when persons offending may be tried for high treason, 408. 
 societies taking unlawful oaths, &c, 408. 
 mutual engagements of societies, 409. 
 compulsory oaths, 409. 
 indictment to state substance of oath, 409. 
 aiders deemed principals, 409. 
 
 societies taking unlawful oaths to be deemed unlawful combinations, 
 &c, 574, et seq. 
 OBJECTIONS, 
 
 to indictments, how to be taken, 37. 
 OBSCENE PASSAGES, 
 
 need not be set out in indictment for libel, 603. 
 OBSCENE PRINTS, 
 
 possession of indictable, 198, 633, 752. 
 power to seize, 751. 
 OBSTRUCTING. See Process. 
 process, 880, et seq. 
 justice, 197. 
 
 powers granted by statute, 201. 
 railway trains, 196 n., 200. 
 OBSTRUCTIONS. See Highway. 
 OFFENCES, where triable. See Venue. 
 definition of, 70. 
 
 when indictable. See Indictable Offences, and Misdemeanors. 
 OFFENSIVE TRADES, 732. See Nuisance. 
 OFFENSIVE WEAPON, 
 
 what shall be deemed, 288, 289, 954, 955. 
 OFFICER, 
 
 offences by persons in office, 416, 
 
 misconduct by public officers indictable, 194, 416. 
 punishable by forfeiture of office, 416. 
 when an office is vested in a body, 416. 
 oppression bjj public officers, 416, et seq. 
 judges, &c, 416. 
 justices of the peace, 416. 
 
 granting or refusing aledicences, 417. 
 gaolers, 418. 
 
 overseers of the poor, 418. 
 not accounting to auditor of a union, 418.
 
 1024 Index. 
 
 OFFICER — continued. 
 
 neglecting duties under Registration Acts, 419. 
 negligence by public officers, 419, el seq. 
 when it amounts to a forfeiture, 419. 
 coroner or sheriff, 419. 
 all subordinate officers, 419. 
 constable, 419. 
 overseer of the poor, 419. 
 churchwardens, 420. 
 clergyman, 420. 
 officers of corporation, 420. 
 chief officers of corporation absenting themselves from elections, 
 
 &c, 420. 
 officers of Court of Chancery, 421. 
 indictment, 421. 
 frauds by public officers, 422. 
 
 fraudulent passing of public accounts, 422. 
 overseer of the poor not accounting for sums received, 422. 
 registrar under Yorkshire Registries Act, 422. 
 commissioner in lunacy. 423. 
 extortion by public officers, 423. 
 signification of, 423. 
 sheriffs, 423, et seq. 
 justices of the peace, 425. 
 churchwarden, 425. 
 coroner, 425. 
 undersheriff, 425. 
 sheriff's officer, 426. 
 gaoler, 426. 
 miller, 426. 
 ferryman, 426. 
 farmer of a market, 426. 
 collector of a post-horse duty, 426. 
 turnpike keeper, 426. 
 Indian officers, 426. 
 indictment, 427. 
 
 may be joint, 427. 
 trial, 428. 
 
 not material to prove sum laid, 428. 
 punishment, 428. 
 refusal to serve an office, 428. 
 constables, 428. 
 overseers of the poor, 429. 
 indictment, 429. 
 disclosing official secrets, 430, et seq. 
 OFFICES. See Officer. 
 
 refusal to execute offices, 428. 
 
 by a constable or overseer of the poor, 428. 
 indictment. 429. 
 buying and selling, 433, et seq. 
 offence at common law, 433. 
 
 attempt to bribe a minister to give an office, 433. 
 by statutes, 434, et seq. 
 
 chancellor, &c, sworn, not to sell offices, 434. 
 
 an offender under it can never hold office again, 434. 
 
 what offices are within it, 435. 
 
 what is in deputation of an office, 435. 
 
 extended to Ireland, Scotland, the Colonies, and the East India 
 
 Company, 436. 
 keeping any place of business for trafficking in offices, &c, or 
 
 advertising, 438. 
 sales of commissions in the army, 438. 
 deputations to offices, 438. 
 trial of offences committed abroad, &c, 439.
 
 Index. 1025 
 
 OFFICES — continued. 
 
 sale of office in stamps, &c, 439. 
 resignation of commission in E. I. service, 439. 
 E. I. cadetship, 439. 
 
 sale of offices by a partner as part of the partnership, 440. 
 chaplaincy, 440. 
 indictment, 440. 
 corrupting public bodies, 440. 
 town councils, 441. 
 county councils, 441. 
 
 OFFICIAL SECRETS, 
 
 disclosing, 430, et seq. 
 OPPRESSION, 
 
 by public officers, 416. 
 OVERSEERS OF THE POOR, 
 property of, how laid, 28. 
 
 prosecuting for offences against apprentices, 93. 
 neglecting to account, 200 n. 
 
 wrongly making up voters' lists, not indictable, 202. 
 how punishable for misfeasance in office, 418. 
 
 instances of misfeasance, &c, 418. 
 indictable for neglect, when, 419. 
 
 in not relieving paupers, 419. 
 
 refusing to call vestries, 419. 
 
 neglecting duties under Registration Acts, 419. 
 
 not receiving pauper, 420. 
 
 neglecting pauper, 420. 
 indictable for keeping fraudulent accounts, 422. 
 indictment for refusing office, 429. 
 duty to bury paupers, 938. 
 OWNERSHIP OF GOODS. See Amendment —Indictment. 
 
 PARDON, 
 
 effect of, 111. 
 PARENT AND CHILD, 
 
 command of parent no excuse for commission of crime by child, 146. 
 
 neglect of child by parent, indictment for, 203. 
 PARISH, 
 
 burthening a parish with paupers, fraudulently, 203. 
 PARISH COUNCIL, 
 
 consent necessai-y for stopping or diverting highway, 780. 
 PARLIAMENT, 
 
 petitions to, 598. 
 
 proceedings in, 600. 
 reports, 604. 
 
 papers published by, 605. 
 libels on, 621. 
 PARLIAMENTARY ELECTION. See Election. 
 PARTICULARS, 
 
 of indictment for conspiracy, 540. 
 
 of indictment for nuisance, 758. 
 PARTNERS, 
 
 stating names of, in indictment, 26. 
 PAUPERS, 
 
 bringing fraudulently into a parish, 202, 203. 
 PAWNBROKER, 
 
 restitution of goods in possession of, 89. 
 
 vol. i. — 65
 
 1026 Index. 
 
 PENAL SERVITUDE, 73-81, Add. 
 substituted for transportation, 74. 
 
 Acts relating to transportation to apply to penal servitude, 74. 
 ticket of leave, 75, 80. 
 forfeiture of, 75, 80. 
 breach of conditions, 75. 
 notification of residence. 76. 
 may be given for any period not less than three years, 79. 
 imprisonment may be given instead, 79. 
 sentence for consecutive terms, 85. 
 convict being at large, 914, et seq. 
 rescuing, 914, et seq. See Rescue. 
 
 PENAL STATUTES. See Statute. 
 
 compounding informations upon, 414, et seq. 
 
 PERJURY, 
 
 -within Vexatious Indictments Act, 2. 
 
 plea of autrefois convict in, 47. 
 
 costs in, 91. 
 
 by an infant, 113, 324. 
 
 attempt to suborn, a misdemeanor, 197. 
 
 by the common law, 293. 
 
 subornation of, by the common law, 293. 
 
 the false oath must be wilful, and taken with some degree of delibe- 
 ration, 293. 
 
 a man may be indicted for perjury in swearing he believes or thinks a fact 
 to be true, 294. 
 
 the oath must be false, 294. 
 the oath must be taken in a judicial proceeding, 294, et seq. 
 
 any court, &c, may administer an oath, 295. 
 
 oath to procure a marriage licence, 295. 
 and before a competent jurisdiction, 297, et seq. 
 
 before a court martial, 297. 
 
 under Public Health Act, 298. 
 
 under Debtors' Act, 1869, 298. 
 
 under Agricultural Holdings Act, 298. 
 
 under Yorkshire Registries Act, 298. 
 
 under Pluralities Act, 298. 
 
 under Merchandise Marks Act, 298. 
 
 under Foreign Marriage Act, 298. 
 
 under Commissioners for Oaths Act, 298. 
 
 at election of coroner, 298. 
 
 under a commission to examine witnesses, 299. 
 
 Insolvent Debtors' Court, 299. 
 
 in Bankruptcy, 299. 
 
 London County Court, 300. 
 
 before grand jury, 300. 
 
 before deputy coroner, 300. 
 
 summary proceedings before justices, 300. 
 
 where justices have no jurisdiction to entertain charge, 301. 
 
 bastardy cases, 305, et seq. 
 
 public-house cases, 307. 
 
 game cases. 307. 
 the oath must be material to the question pending, 307, 353. et seq. 
 
 if circumstantially material it is sufficient, 308, Add. 
 
 it need not be sufficient to prove the point, 308. 
 
 whatever affects the credit of a witness is sufficient, 309. 
 
 dates of instruments, 309. 
 
 entering close in pursuit of game, 310. 
 
 passing by a different name, 310. 
 
 evidence to admit a document, 311. 
 
 reading over a bond, 313. 
 
 destruction of accounts, 313. 
 
 evidence on a reference, 313.
 
 Index. 1027 
 
 PERJURY — continued. 
 
 before a coroner, 314. 
 
 in bastardy cases, 314, 315. 
 where inadmissible evidence was improperly admitted, 315. 
 oaths denying contracts void by the Statute of Frauds, 316. 
 
 to set aside contract on the ground of fraud, 317. 
 on trial of indictment reversed on error, 318. 
 
 any oath which tends to mislead a court in a judicial proceeding, 318. 
 materiality a question of law, 319. - 
 a man may be perjured in his own cause, 320. 
 a false verdict not perjury, 320. 
 oath need not be credited. 320. 
 
 false oath indictable in some cases, though not assignable as perjury, 
 320. 
 statutes relating to, 320. et seq. 
 
 procuring persons to commit, 320. 
 
 punishment. 321. 
 committing, 321. 
 
 punishment, 322. 
 
 separate sentences on different counts, 322. 
 statutes as to false affirmations of Quakers, Moravians, Separatists, &c. 
 
 323, et seq. 
 affirmations, 323. 
 Oaths Act, 1S88, 324. 
 false declarations, 324. 
 as to marriages, 324. 
 by candidates or election agents. 324. 
 child not sworn may commit perjury, 324. 
 lords of the treasury may substitute declarations for oaths in certain 
 
 cases, 325. 
 declaration to be published in Gazette, 325. 
 no oath to be administered afterwards, 325. 
 false declarations a misdemeanor, 325. 
 universities may substitute declarations for oaths, 326. 
 declarations by churchwardens, 326. 
 as to turnpike trusts, 326. 
 on taking out patents, 326. 
 as to pawnbrokers. 326. 
 
 justices of peace not to administer certain oaths, 327. 
 declarations on the transfer of stock, 327. 
 to prove execution of wills, 328. 
 in suits on behalf of the Crown, 328. 
 in the form in the schedule, 32S. 
 
 persons making false declarations guilty of a misdemeanor, 328. 
 construction of the 5 Eliz. c. 9, 328. 
 indictment on that statute, 329, 330. 
 
 any court, &c, may direct prosecutions for perjury, &c. , 330. 
 simplifying indictments for perjury, subornation of perjury, &c, 331. 
 certificate of previous trial, 332. 
 indictment, 330, 332. 
 
 several persons not to be joined in one indictment, 332. 
 venue, 332. 
 allegation of time. 333. 
 necessary statements. 334. 
 variances, 334. 
 
 in statements as to courts, &c, 334, et seq. 
 
 setting out substance and effect. 335. 
 
 statements set out continuously, 335. 
 
 stating election returns, 336. 
 
 proceedings in Chancery, 336. 
 
 county courts, 337. 
 
 spelling of words, 337. 
 
 translation of Welsh, 338. 
 
 variance in substance and effect, 338.
 
 1028 Index. 
 
 PERJURY — continued. 
 
 matter sworn in a joint deposition, 338. 
 variance in information, 339. 
 where equivocal term is used, 339. 
 amendment of variances, 340. 
 averment that the complaint was heard, 340. 
 before whom the trial took place, 340, et seq. 
 adjournment of a quarter sessions, 342. 
 stating that the defendant was sworn, 343. 
 'wilfully and corruptly,' 343. 
 authority to administer the oath, 344. 
 in taxation of costs, 345. 
 statement of holding petty sessions, 346. 
 
 of a charge before a magistrate, 347-349. 
 in affidavit under an interpleader rule, 349. 
 on a writ of inquiry, 349. 
 before commissioners of bankruptcy, 350. 
 
 indictment must state the authority to administer the oath, 350. 
 before commissioners of assessed taxes, 351, 353. 
 it must appear that the oath was material, or it must be alleged to be 
 
 so, 307. 353, et seq. 
 of the falsity of the matter sworn, 361. 
 
 assignments of perjury, 361. , > 
 
 indictment must show which of two contradictory depositions is false, 
 362. 
 
 of the innuendo, 363, et seq. 
 conclusion of the indictment. 365. 
 the court will in general oblige the defendant to demur to a defective 
 
 indictment. 366. 
 judge may refuse to try defective indictment, 366. 
 plea of autrefois acquit, 367. 
 trial, 367. 
 
 quarter sessions have no jurisdiction, 387. 
 practices where civil suit is pending, 367. 
 evidence, 368. 
 
 one witness not sufficient, 368. 
 
 one witness and corroborative evidence, 368, etseq. 
 
 confirmation as to two out of three assignments, 370. 
 
 contradictory oath of the defendant, 372. 
 
 contradictory statements not on oath, 374. 
 
 several witnesses speaking as to several assignments, 375. 
 
 to what part of the case the rule extends, 376. 
 
 ^ admissions. 376. < 
 
 judges' notes, 376. 
 competency of witnesses, 376. 
 ^--» chairman of quarter sessions, 377. — — ""*" 
 
 judge of county court, 377. 
 proof of defendant having sworn in substance and effect, 377. 
 proof of the whole of defendant's testimony, 378, 379. 
 proof of authority to administer oath, 379. 
 the oath must be proved as alleged, 381. 
 the place stated in the jurat, evidence that the affidavit was sworn there, but 
 
 not conclusive. 381. 
 proof against a bankrupt. 382. 
 
 against witness examined by commissioners of bankruptcy, 382. 
 proof of oath in an answer in Chancery, &c, 383, et seq. 
 proof of filing petition in bankruptcy. 383. 
 proof of will, 383. 
 
 proof of proof of debt against a bankrupt, 384. 
 proof of trial of cause, 384, 385. 
 proof of judgment. 384. 
 proof of proceedings in county court, 386. 
 proof of proceedings at petty sessions, 386, 3S7 . 
 amended bill in Chancery, evidence of original. 387.
 
 Index. 1029 
 
 PERJURY — continued. 
 
 copy of a bill in abbreviations, insufficient, 388. 
 
 affidavit of marksman inadmissible, unless it is proved to have been read 
 over; secus, if made by a party that can write, 389. 
 
 evidence confined to persons named in assignments, o>>9. 
 
 evidence of partnership, 389. 
 
 declaration of an agent, when admissible, 3S9. 
 
 parol evidence to add to a deposition, 390. 
 
 examined copy of rules of friendly society, 490. 
 
 signature of prisoner whilst examined as a witness, 391. 
 
 award of arbitrator, 391. 
 
 conviction before justices, when inadmissible, 391. 
 
 evidence of the corrupt intent of the defendant, 391. 
 on evidence for the defence, 392. 
 
 general expressions in one answer explained by another answer, 393. 
 it is no defence that an affidavit has a defective j urat, 393. 
 
 or that the affidavit has not been used, 394. 
 
 or that the affidavit has a defective title, 394. 
 verdict on any one assignment, 395. 
 proof on prosecution for subornation of perjury, 395. 
 misdemeanor notnen collectivum, 396. 
 one judgment on several counts, 396. 
 punishment of perjury and subornation, 396. 
 judgment, 397. 
 
 making a false schedule of debts, 398. 
 
 making false answers to questions at elections, 398-401, 457. 
 administering oath contrary to 5 & 6 Will. 4, c. 62, 401. 
 false declarations, 402. 
 
 at election inquiries, 454 n. 
 on unsworn evidence of child, Add. 
 
 PERSONATION, 
 
 at elections, 450, 458. 
 
 paying to personate, 446. 
 
 procuring, 450. 
 PETITION, 
 
 improper withdrawal of election, 450. 
 
 tumultuously presenting, 581. 
 
 libellous matters in, 598. 
 PETTY SESSIONS, 
 
 proceedings at, how proved, 386. 
 PHOTOGRAPH, 
 
 evidence by, 714. 
 PHYSICIAN, 
 
 murder by, 664, et seij. 
 PICKETING, 547. 
 PICK-LOCK KEYS, 
 
 having them in possession with felonious intent, 199. 
 PIGEON SHOOTING, 
 
 nuisance by, 739. 
 PIGS, 
 
 nuisance by keeping, 732. 
 PILLORY, 66. 
 
 punishment of, abolished, 321 n. 
 PIRACY, 
 
 at common law, 260. 
 
 not punishable till the 28 Hen. 8, 260. 
 no felony under that statute, 260. 
 as to corruption of blood, 260 n. 
 
 by the 11 & 12 Will. 3, 260. 
 
 acts done under the commission of a foreign state, 260. 
 
 18 Geo. 2, c. 30, 261.
 
 1030 Index. 
 
 PIRACY — continued. 
 
 piracy under an enemy's commission, 261. 
 
 persons convicted under, when not triable for high treason, 261 n. 
 commanders, seamen, &c, running away with ships, or yielding voluntarily, 
 
 &c, or confederating, 261. 
 attempting to corrupt the crew, &c, or putting force upon the commander, 
 
 261. 
 forcibly entering merchants' ships, and destroying goods, 262. 
 trading with pirates, furnishing them with ammunition, &c, 262. 
 1 Vict. c. 88, s. 2, piracy where murder attempted, 262. 
 
 sec. 3, in other cases, 263. 
 
 sec. 4, of accessories, 263. 
 
 sec. 5, offences punishable by imprisonment, 263. 
 punishment of piracy at common law, 263 n. 
 cases of piracy, 264. 
 case on 11 & 12 Will. 3, making a revolt in a ship, 264. 
 
 what is a revolt, 264. 
 
 when justifiable, 265. 
 
 an endeavour to make a revolt, 265. 
 
 who are mariners and seamen, 265. 
 adhering to the king's enemies. 265. 
 of accessories, 267. 
 
 declared principals by the 8 Geo. 1, 268. 
 
 receiving and abetting a pirate within a county. 268. 
 place w T here the offence may be committed, 10, 260, 268. 
 in what court to be tried, 268. 
 PLAGUE, 
 
 persons affected with, going abroad and affecting others. 272. 
 
 queer e, whether in any case murder. 272. 
 
 PLATE. See Bullion. 
 
 PLAY, 
 
 players indictable as an unlawful assembly and riot, 555 n. 
 playhouses, when a nuisance, 742, 743. 
 
 PLEAS, 
 
 pleas in abatement, 38. 
 dilatory plea of a misnomer, 38. 
 autrefois acquit and convict, 38. 
 
 in burglary, 39. 
 
 for same offence, 40. 
 
 different reign. 42. 
 
 larceny and false pretences, 42. 
 
 murder and manslaughter, 42-45. 
 
 administering poison, 44. 
 
 acquittal on coroner's inquisition. 45. 
 
 concealment of birth, 45. 
 
 assault, 45. 
 
 on indictment unamended, 45. 
 
 against prisoners and others, 46. 
 
 larceny of fixtures, 47. 
 
 railway offences, 47. 
 
 perjury, 47 
 
 insolvent debtor, 47. 
 
 burglary, after acquittal for murder, 47. 
 
 as accessory after acquittal as principal, 48. 
 
 several chattels stolen, previous acquittal as to one, 48. 
 
 where first indictment bad, 48. 
 
 two indictments in same form, different facts, 49. 
 
 how pleaded, 49 n. 
 PLURALITIES ACT, 
 
 perjury at inquiries under. 298. 
 POACHING. See Game. 
 unlawful assembly, 571.
 
 Index. 1031 
 
 POISON, 
 
 indictment for administering after acquittal for murder, 44. 
 
 administered with intent to cause sickness not indictable at common law, 
 204, 275. 
 
 laid by several, and taken in the absence of all, all are principals in the 
 murder, 166. 
 POLICE COMMISSIONER, 
 
 negligence by, 580. 
 POLICE SUPERVISION. 69. 
 POOR LAW OFFICERS, 
 
 assaults on, costs, 95. 
 POSSE COMITATUS, 
 
 neglecting to join, 257. 
 
 raising, when not a riot, 364. 
 POSSESSION, 
 
 of coin, 234. 
 
 definition of, 20S. 
 
 of coining-instruments, 226. 
 
 of housebreaking implements, 199. 
 
 of libel, 633. 
 POST, 
 
 property sent by, how laid, 36. 
 POST MORTEM, 
 
 costs of, 101 n. 
 POSTPONING TRIAL, 50. 
 
 costs of, 103. 
 POUNDBREACH. 
 
 whether indictable, 882, 883. 
 PRAYER BOOK, 
 
 ridiculing, 613. 
 PREACHER, 
 
 disturbing, 653. 
 PREGNANCY, 
 
 he who counsels to murder the child is accessory to the murder. 175. 
 
 conspiring to procure abortion. 4H2. 
 PRESCPvIPTION, 
 
 liability to repair highway by, 799. 
 PRESENCE, 
 
 how far necessary to abettor in crime, 163, 165. 
 PRESUMPTION, 
 
 in favour of valid marriage, 694. 
 PRETENDED TITLES, 
 
 sale of, 477, 485. 
 PREVIOUS CONVICTION, 
 
 punishment, &c, 66-73. 
 
 larceny after conviction for felony, 66. 
 
 larceny after conviction for misdemeanor, 67. 
 
 larceny after two summary convictions, 67. 
 
 form of indictment for, 68. 
 
 conduct of trial for, 68. 
 
 under Prevention of Crimes Act. 69. 
 
 police supervision, 69. 
 
 under the 7 & 8 Geo. 4, c. 28, s. 11, 70. 
 
 more than one charged, 70. 
 
 form of certificate, 71. 
 
 proof of identity, 71. 
 
 proof of, in answer to good character, 72. 
 
 special offences by persons twice convicted, 77. 
 
 provision as to children of woman twice convicted, 79. 
 
 in coining cases, 235. 
 
 in night-poaching cases, 950.
 
 1032 Index. 
 
 PRINCIPAL. See Accessory. 
 
 indictment as after acquittal as accessory, 48. 
 
 in the first degree, 161. 
 
 in the second degree, 161. 
 
 punishment of, 84. 
 
 termed aider and abettor, 161. 
 
 sometimes accomplice, 161. 
 formerly considered accessory at the fact, 161. 
 
 and not triable till principal convicted, 161. 
 must be charged with being present, aiding, and abetting. 162. 
 how far he must be present at the commission, 162. 
 
 what shall constitute such presence, 162. 
 there must be some participation, 162. 
 assisting a servant, knowledge of authority, 163. 
 all present principals though one only acts, 164. 
 must be near enough to assist, 163. 
 throwing goods out of window to an accomplice, 164. 
 community of purpose at the time, 165. 
 by means of an innocent agent, 165, 166. 
 in a crime done in prosecution of some unlawful purpose by several, 167. 
 
 where there is a general resolution against all opposers, 168. 
 indictment against, 169. 
 the same person may be a principal and an accessory in the same felony, 170. 
 
 where he may not be charged as both in one indictment, 170 n. 
 
 a man cannot be indicted as, after an acquittal as accessory before the 
 fact, 188. 
 
 PRINTERS, 
 
 liabilities of, 636, et seq. 
 PRISON-BREAKING. See also Rescue and Escape. 
 definition of, 899. 
 felony at common law, 899. 
 bv the 1 Edw. 2, st. 2. 899. 
 
 what is a prison within the Act, 899. 
 of the regularity of the imprisonment, 899. 
 
 of the nature of the crime for which the party was imprisoned, 900. 
 of the nature of the breaking, 901. 
 escape of the party. 902. 
 proceedings for, 902. 
 
 indictment, evidence, and punishment, 902. 
 where the party breaking prison is a convicted felon, 902, 903. 
 by convicts in Parkhurst, 903. 
 by convicts sentenced to penal servitude, 914, et seq. 
 
 PRISONER, 
 
 sentence on, 85. 
 
 money found upon, 89. 
 PRIVATE INJURIES, 
 
 not indictable, 195. 
 PRIVATE PERSONS, 
 
 libels on, 626. 
 
 suppression of affrays by, 589. 
 
 as to their right to enter with force when they have legal title, 717. 
 PRIVILEGED COMMUNICATIONS. See Libel. 
 
 PRIZE FIGHTING. 
 
 when an unlawful assembly, 570. 
 PROCESS. See Arrest. 
 
 obstructing process, 880, et seq. 
 
 opposing arrest upon criminal process. 880. 
 
 giving assistance to persons pursued on suspicion of felony, 880. 
 
 in places of supposed privilege, 881. 
 
 as to the lawfulness of the arrest, 881. 
 
 by rescue of the party arrested, 882. See Rescue. 
 
 by rescuing goods distrained, poundbreach, 882.
 
 Index. 1033 
 
 PROCURING, 
 
 commission of felony, 172. 
 
 publication of libel, 635. 
 PROHIBITION, 
 
 of nuisance, 765. 
 PROPERTY, 
 
 ownership of, in indictments, 26-36. 
 
 of convict, 108-112. 
 
 restitution of stolen. See Restitution. 
 PROSECUTION, 
 
 costs of, 90. 
 PROVIDENT SOCIETY. See Friendly Society. 
 PROVISIONS, 
 
 unwholesome, selling, 274. 
 
 enhancing the price of, 476. 
 
 undue abatement of their value, 476. 
 PUBLICATION, 
 
 evidence of, 634. 
 PUBLIC BODIES, 
 
 corrupt practices by, 410, et seq. 
 
 definition of, 441 n. 
 
 PUBLIC ENTERTAINMENT, 
 
 unlicensed places of, 742 n. 
 PUBLIC HEALTH, 
 
 offences affecting, 272, et seq. 
 
 perjury in matters relating to, 298. 
 PUBLIC MEETING, 
 
 right of, 580. 
 
 proceedings at. See Libel. 
 PUBLIC OFFICERS. See Officers. 
 PUBLIC PLACE, 
 
 what is, 748, 749, 754. 
 PUBLIC WORSHIP, 
 
 disturbance of, 652, et seq. See Disturbance. 
 
 PUNISHMENT. See the Titles of the Respective Offences. 
 
 fine, 66, 84, 217. 
 
 sureties to keep peace, 66, 84, 217. 
 
 imprisonment, 64, 70 n. 
 
 hard labour, 81, 218. 
 
 solitary confinement, 66, 82, 218, Add. 
 
 police supervision, 69. 
 
 whipping, 66, 70, 83. 
 
 penal servitude, 73, 79. 
 
 death, 64. 
 
 transportation. 65. 
 
 pillory, 66, 321. 
 
 of felonies not punishable by any statute except 7 & 8 Geo. 4, c. 28, 66. 
 
 where previous conviction, 66. 
 
 of principals in second degree, 84. 
 
 of accessories, 84. 
 
 Q. 
 
 QUAKERS, 
 
 affirmations by, 324. 
 
 libel by society of, 611. 
 
 marriages of, 674, 675, 681, 685, 687.
 
 1034 Index. 
 
 QUARANTINE, 
 
 neglecting, 269. 
 
 26 Geo. 2, c. 6, 269. 
 
 disobedience to order of council under, indictable, 269. 
 6 Geo. 4, c. 78, 269. 
 
 penalty on masters and others quitting vessels or permitting 
 
 others, &c, or not conveying them to the appointed places, 270. 
 persons coming in such vessels, or going abroad and quitting them 
 
 before discharged, &c, 270. 
 penalty on officers and others embezzling the goods performing 
 quarantine, or neglecting or deserting their duty, on giving 
 false certificates, &c, 270. 
 publication of orders in council in London Gazette sufficient 
 
 notice, 271. 
 evidence of the place from which vessel came, &c, 271. 
 
 of having been directed to perform quarantine, 271. 
 what deemed vessels within the 6 Geo. 4, c. 78, 272 n. 
 35 & 36 Vict. c. 79, s. 52, 272. 
 QUARRY, 
 
 blasting stone in, 736. 
 
 R. 
 
 RABBITS, 945 n., 947. See Game. 
 RACING, 
 
 nuisance by, 743. 
 RAILWAY OFFENCES, 
 
 plea of autrefois acquit, 47. 
 
 intent to obstruct, 196 n., 200. 
 
 when a highway, 762. 
 
 bridge over highway, 792. 
 RAPE, 
 
 indictment for several on same day, 49. 
 
 by an infant, 117. 
 
 indictment for attempt to commit, need not negative the commission, 196. 
 RECEIVING STOLEN GOODS, 
 
 plea of autrefois acquit, 46. 
 
 restitution of property, 86. 
 
 whether principal in larceny, 165. 
 
 punished more severely than larceny, 174. 
 
 indictment need not state name of thief, 186. 
 RECOGNISANCE, 
 
 under Vexatious Indictments Act, 2. 
 
 of married woman, 66 n. 
 
 to keep the peace in felony, 84. 
 in misdemeanor, 84. 
 to come up for judgment, 85. 
 RECORDING JUDGMENT, 64. 
 REFORMATORY SCHOOL, 81. 
 REGISTRATION, 
 
 omitting to register birth, 200. 
 REGRATING, 
 
 statutes, &c, on the subject repealed, 476. 
 REIGNS, 
 
 offences in different, 41. 
 RELIGION, 
 
 libels on, 614-617. 
 RELIGIOUS ASSEMBLIES, 
 
 contemptuously, &c, disquieting or disturbing, 652, et seq.
 
 Index. 1035 
 
 REPAIR. See Highway. 
 
 REPEAL OF STATUTE, 
 
 effect of, 205. 
 
 RESCUE. See Prison-breaking and Escape. 
 
 obstructing process by rescue of party arrested, 882. 
 rescuing goods distrained, 882, 883. 
 
 freeing another from arrest or imprisonment, 904, et seq. 
 sort of prison, 904. 
 
 of imprisonment and breaking, 904. 
 a rescuer may be guilty of high treason, 904. 
 breaking a prison is not a felony, unless the prisoner escape, 905. 
 proceedings against rescuers, 905. 
 indictment, 905. 
 punishment, 905. 
 in cases of misdemeanor, 906. 
 aiding a prisoner to escape, 906. 
 
 in cases of felony, 906. 
 statutes respecting the rescuing of prisoners or aiding them to escape, 907, 
 et seq. 
 
 rescuing person in custody for murder, 907. 
 aiding the escape of prisoner of war, 907. 
 
 aiding a prisoner convicted or committed for treason or felonv to escape, 
 908. 
 
 confined for debt, 909. 
 conveying any disguise or instruments into prison to aid escapes, 909, 913. 
 assisting persons charged with treason or felony in attempt to escape 
 
 from constable, &c, 909. 
 limitation of prosecutions, 910. 
 cases on the construction of the Act, 910, et seq. 
 a commitment on suspicion not within it, 910. 
 the statute does not extend to cases where an actual escape is made, 
 
 910. 
 where the prisoner has been pardoned on condition, &c, 910, 911. 
 where the party does not know the prisoner's offence, 911. 
 indictment on the statute, 911. 
 evidence of prisoner's conviction, 911. 
 rescue from particular prisons, 912. 
 
 from criminal lunatic asylum, 912. 
 
 of convicts sentenced to penal servitude, 914, et seq. 
 
 RESOLUTION AGAINST ALL OPPOSERS, 168. 
 
 RESORTING, 929 n., Add. 
 
 RESTITUTION, 
 
 of stolen property, 86. 
 
 of property received with guilty knowledge, 86. 
 
 of property obtained by false pretences, 86 n. 
 
 except negotiable securities, 87. 
 
 in prosecutions of bankers, factors. &c, 87. 
 
 proceeds of stolen property, 87. 
 
 after transfer under Factors Act, 88. 
 
 where prisoner pleads guilty, 88. 
 
 no authority to make an order except as to what has been stolen and its pro- 
 ceeds, 89. 
 
 when there has been a sale in market overt, 89. 
 
 when a pawnbroker has advanced money, 89. 
 
 money found on prisoner, 90. 
 
 compensation to injured person, 110. 
 
 power of court to order in case of forcible entry, 728, et seq. See Forci- 
 ble Entry. 
 
 REVENUE LAWS, 
 
 offences against, 277, et seq. 
 smuggling, 277. 
 
 definition of, 277.
 
 1036 Index. 
 
 REVENUE LAWS — continued. 
 16 & 17 Vict. c. 107, 277. 
 
 vessels not bringing to may be fired at. 278. 
 
 vessels, &c, may be searched, 278. 
 
 importing, &c, prohibited goods, 279. 
 
 rescuing goods seized, 279. 
 
 rescuing apprehended persons, 280. 
 
 assaulting officers, 280. 
 
 three or more persons armed with fire-arms and other offensive 
 
 weapons, and assembled for purpose of assisting the landing, &c, 
 
 guilty of felony, 280. 
 penalty for making signals to smugglers, 280. 
 proof of not being a signal to lie on defendant, 281. 
 any one may prevent, &c, signals, 281. 
 persons shooting at any boat, &c, or wounding officers, &c, guilty of 
 
 felony, 281. 
 persons detained under Custom Acts, 282. 
 persons meddling with smuggled spirits, 282. 
 persons selling smuggled goods, 282. 
 forfeiture of ships, carts, &c, 282. 
 power to seai'ch cai'ts, &c, 283. 
 power to search houses, 283. 
 writs of assistance, 283. 
 goods seized, how dealt with, 284. 
 power to restore goods seized, 284. 
 power to remit fines and penalties, 285. 
 inprisonment in lieu of fine, 285. 
 indictments, 285. 
 time, 285. 
 venue, 285, 290. 
 
 onus proband i as to payment of duty on persons claiming goods, 286. 
 averment of certain matters sufficient till contrary proved, 286. 
 persons employed to prevent smuggling to be deemed duly employed, 
 
 286. 
 viva-voce evidence of being officer, 286. 
 evidence of order, 286. 
 evidence of condemnation, 286. 
 interpretation of terms, 287. 
 duty to seize, how alleged in indictment, 287. 
 shooting by officers without hoisting signal, 288. 
 what are offensive weapons, 288, et seq. 
 hatchet, 289. 
 sticks, 289. 
 whip, 289. 
 hop-poles, 289. 
 stones, 290. 
 what an assembling, 290. 
 
 count for common assault not triable in another county, 290. 
 
 REVOLT, 
 
 what is at sea, 264, et seq. 
 
 REWARD, 
 
 for apprehension of offender, 104, 105. 
 
 when person killed, 105. 
 for helping to the discovery of stolen goods, 412. 
 
 RING-DROPPING, 
 
 felony to aid a person to obtain money by, 167. 
 
 RINGING THE CHANGES, 
 
 an uttering of counterfeit coin, 239. 
 
 RIOT, 553, et seq. Unlawful Assembly. 
 definition of, 553. 
 women are punishable for, 569. 
 
 but not infants under the age of discretion, 569.
 
 Index. 1037 
 
 RIOT — continued. 
 
 when the law authorises force, an assembling will not be riotous, 554. 
 
 how far the object must be of a private nature, 554. 
 
 as to the degree of violence or terror, 554. 
 
 the legality of the act intended is not material, if there be violence and 
 
 tumult, 555. 
 stage players, 555 n. 
 
 how far the violence and tumult must be premeditated, 556. 
 though the parties assemble for an innocent purpose, they may afterwards be 
 
 guilty of a riot, 556. 
 any one taking part in a riot is a rioter ; all are principals, 556. 
 inciting to riot, 557, el seq. 
 statute relating to, 565. 
 
 rioters pulling down, &c, churches, houses, mills, &c, 565. 
 pulling down buildings used for trades and manufactures, 565. 
 engines, &c, for working mines, 565. 
 injuring buildings, &c, 565. 
 
 where rioters desist from demolishing of their own accord, 566. 
 where they are interrupted by constables, &c, 566. 
 the beginning to pull down must be with intent to demolish the whole 
 
 house, 567. 
 destroying by fire, 567. 
 
 some part of the freehold must be destroyed. 568. 
 assertion of a supposed right, 56S. 
 seamen preventing the loading of vessels, 568. 
 difference between and an unlawful assembly, 569. 
 Riot Act, 571. 
 
 proclamation, 572. 
 
 when insufficient, 573. 
 suppression of riots, 581. 
 by common law, 581. 
 by statutes, 583. 
 indictment and trial, 583. 
 evidence, 584. 
 
 resolutions at former meetings, 584. 
 hissing on way to meeting, 585. 
 flags, inscriptions, and devices, 585. 
 to prove alarm, 585. 
 punishment for, 585. 
 difference between riot and affray, 587. 
 RIVERS. See Highway. 
 
 pollution of, indictable, 276. 
 considered as highways, 842. 
 navigable rivers, S42. 
 
 nuisances and obstructions to, within the same principle as those to high- 
 ways, 842. ° 
 still highways, though the course changed, S42. 
 how right extinguished, 843. 
 
 writ ad quod damnum, 843. 
 tidal river not necessarily navigable, 843. 
 diverting course, 843. 
 obstructing, 843. 
 
 by timber, 843. 
 
 by floating dock, 843. 
 
 by barge or ship, 843. 
 
 by bridge, 843, 847. 
 
 by weirs, 844, 848-852. 
 where owners of adjacent lands may raise the banks of a river, 844. 
 canals, 844, 845. 
 
 no defence that a nuisance produces more advantage for other purposes, 846. 
 
 injury too slight to support an indictment, S46. 
 
 question for the jury whether a bridge obstructs navigation, 847. 
 
 taking fish no nuisance, 847. 
 
 sunken vessels, 847, 848.
 
 1038 Index. 
 
 RIVERS — continued. 
 
 weir granted by the crown before Edw. 1, 848-852. 
 
 leaving anchor without buoy, 848 n. 
 
 indictment for obstructing, 852. < 
 
 liability to clear the passage of, 852. 
 ROAD. See Highway. ' • 
 
 ROMAN CATHOLICS, 
 
 disturbance of worship of, 657. 
 
 marriages of, 064, 666, 685. 
 
 marriage by priest, 704. 
 ROPE-DANCERS, 
 
 public nuisances, 743. 
 ROUT, 569. See Unlawful Assembly — Riot. 
 ROYAL COMMAND, 
 
 disobeying, 257. 
 
 S. 
 
 SAILOR. See Seamen and Soldiers. 
 SALVATION ARMY, 
 
 when unlawful assembly, 571. 
 SAMPLES, 
 
 tampering with, intended for evidence, 198. 
 SAVINGS BANKS, 
 
 property of, how laid, 84. 
 SC AND ALUM MAGNATUM, 624 n. 
 SCOLD, 
 
 common, 752. 
 SCOTLAND, 
 
 marriages in, 698, et seq. 
 SEA, 
 
 offences at, 9. 
 
 where tried, 9. 
 
 high and low watermark, 10. 
 
 bay within headlands, 11. 
 
 inland sea, 11. 
 
 bringing stolen goods ashore, 12. 
 
 foreign ship sinking British ship, 15. 
 
 murder, 17, 19. 
 
 accessories, 17. 
 
 trial at assizes, 18. 
 
 indictment, 18. 
 venue, 18. 
 high seas, 18. 
 what are, 23. 
 
 British ship in foreign port, 19. 
 
 British subject on foreign ship, 19. 
 
 foreigner on British ship, 20. 
 
 what is British ship, 22. 
 
 sea fishing boat. 24. 
 
 British ship under order of foreign government, 23. 
 war ships in foreign waters, 23. 
 
 costs, 23. 
 
 coining at, 216. 
 
 piracy, 260, et seq. 
 
 highway washed away by, 774. 
 
 burial of bodies cast ashore, 941.
 
 Index. 1039 
 
 SEALS, 
 
 hunting, 19. 
 
 SEAMEN, 
 
 riotously preventing the loading, &c, of vessels, 568. 
 SEARCH. See Revenue Laws. 
 
 SECRETS, 
 
 disclosing official, 430, et seq. 
 SEDITION, 
 
 persons guilty of. are first class misdemeanants, 83. 
 
 unlawful oaths, 401, et seq. 
 
 inciting to, 558, et seq. 
 
 seditious libels, 618, 622, et seq. 
 
 SELLING OFFICES. See Offices. 
 
 SENTENCE. See Judgment. 
 
 where offender in prison for another crime, 85. 
 
 where convicted on more than one charge, 85. 
 SERMON, 
 
 libel in, 607, 611. 
 SERVANT, 
 
 not excused from the commission of a crime by the coercion of his master 
 146. 
 
 liability of master for acts of, 274 n., 276. 
 
 soliciting to steal his master's goods, a misdemeanor, 196. 
 SESSIONS, 
 
 order of, disobedience to, 883. 
 SEWERS. See Commissioners of Sewers. 
 SHERIFF, 
 
 neglect of duty, how punishable, 419, 423. 
 
 offences by, how punishable, 423. 
 
 under-sheriff, 423. 
 
 offences by, 423, 426. 
 
 sheriff's officer. 423. 
 
 offences by, 423, 426. 
 
 farming out his county, 434. 
 SHIP. See Seamen — Sea — Revenue Laws. 
 
 in service of foreign state, &c, 249, et seq. See Foreign State. 
 
 running away with, &c, 261. See Piracy. 
 
 forcibly entering merchant ships and destroying goods, &c, 261. See tit. 
 Piracy. 
 
 making a revolt in, when piracy, 264, et seq. 
 
 quarantine by, 263. See Quarantine. 
 
 commander of, assaulting, to hinder from fighting, 261. 
 
 searching, 278, 
 
 signalling from, 280. 
 
 shooting at a ship or boat, 281, 288. 
 
 seizing, 282. 
 
 putting combustibles on board without notice, 736. 
 SHOOTING, 
 
 at any ship or boat, officer. &c, in resistance to revenue laws, 281, 288. 
 SICKNESS, 
 
 producing by poison not indictable, 204. 
 SIGN MANUAL, 
 
 evidence of, 926. 
 SIGNALS, 
 
 making lights, &c, on shore, as signals to smugglers, 280. 
 SIGNATURE, 
 
 proving, 391. 
 SILVER. See Coin— Bullion. 
 SLANDER. See Libel.
 
 1040 Index. 
 
 SLAUGHTER-HOUSE, 
 
 nuisance from, 733. 
 
 SLAVES, 
 
 dealing in slaves, 464, et seq. 
 
 dealing, &c, in, on the high seas, piracy, &c, 465. 
 
 indictment, 470. 
 
 trial of offences, 473. 
 
 SMALLPOX, 
 
 exposing a person affected with, in a place of public resort, indictable, 272. 
 inoculating for, whether indictable, 273 n. 
 vaccination for, 274. 
 
 SMELLS, 
 
 nuisance from offensive, 733. 
 SMUGGLING. See Revenue Laws. 
 SOCIETIES. See Friendly Society. 
 
 illegal, 569, et seq. See Unlawful Assemblies. 
 
 SOLDIERS AND SAILORS, 
 
 serving foreign states. See Foreign States. 
 seducing to desert or mutiny, 258, et seq. 
 sailor in hospital within the act, 259. 
 
 SOLICITING, 
 
 to commit crime, indictable, 196. 
 
 to unchastity, not indictable, 741. 
 
 to murder, 906. 
 SOLITARY CONFINEMENT, 66, 82. 
 
 under Consolidation Acts, 83. 
 
 provisions relating to repealed, Add. 
 SPECIAL VERDICT, 64 n. 
 
 SPENCEAN, 
 
 societies, unlawful assemblies, 578. 
 
 STAGE-COACHES, 
 
 nuisances by, 786. 
 
 STAGE PLAYERS, 
 
 indictable for riot, 555 n. 
 
 STAMPS, 
 
 selling office of distributor, 439. 
 
 STATUTE, 
 
 rules for interpretation of, 1. 
 
 what words in, create a felony, 192. 
 
 offences created by, when indictable, 199. 
 
 when not indictable, 201. 
 
 effect of repeal of statutes, 205, 541. 
 STEAM ENGINES. See Engines. 
 
 nuisances by, 759. 
 
 regulations of, 759. 
 
 rioters destroying, 565. 
 STERLING COIN. 
 
 what is, 207. 
 STICKS. See Offensive Weapons. 
 STOLEN PROPERTY. See Restitution. 
 
 STONES, 
 
 when deemed offensive weapons, 954. 
 
 SUBJECTION, p ._ ... 
 
 to the power of others, when an excuse for committing a crime, 140. 
 
 SUBORNATION OF PERJURY. See Perjury. 
 within Vexatious Indictments Acts, 2. 
 attempt to suborn a misdemeanor, 197. 
 
 SUING, 
 
 in the names of a fictitious plaintiff, 489.
 
 / 
 
 Index. 1041 
 
 SUMMARY JURISDICTION, 
 
 when offences indictable, 206, Add. 
 
 SUPPRESSION OF AFFRAYS, 
 
 by private person, 589. 
 
 by constable, 590. 
 
 by justice of peace, 592. 
 SUPPRESSION OF_ RIOTS, 
 
 at common law, 581. 
 
 by statute, 583. 
 SURETY OF THE PEACE, 66. 
 
 under Consolidation Acts, 84. 
 SURVEYOR, 
 
 of highways. See Highway. 
 
 SWINE, 
 
 nuisance by keeping, 732. 
 
 T. 
 
 TAME BIRDS, 
 
 not game, 949. 
 TELEGRAM, 
 
 libellous, 608. 
 TELEGRAPH POSTS, 
 
 obstructing highway, 788. 
 THEATRES, 
 
 unlicensed, 742, n. 
 THREATS. See Intimidation. 
 TICKET OF LEAVE, 75-80. 
 TIME, 
 
 in offences against Revenue Laws, 281, 285. 
 
 in indictments for perjury, 334. 
 
 for taking proceedings for night poaching, 949. 
 TITLES, 
 
 pretended, buying and selling, 485. 
 TOOLS. See Coining-Instruments. 
 TOWING-PATH. See Highway. 
 TOWN COUNCIL. See Elections. 
 
 bribery of councillor, 441. 
 TRADE, 
 
 libel on man in respect of, 627. 
 
 offensive, carrying on, when a nuisance, 732. 
 TRADES UNION, 
 
 property of, how laid, 35. 
 
 in restraint of trade, 544, et seq. 
 TRAFALGAR SQUARE, 
 
 riots in, 557, et seq. 
 
 meeting in, 580, et seq. 
 TRAMWAY, 
 
 when a highway, 762. 
 
 obstructing highway, 788. 
 TRANSPORTATION. See Penal Servitude. 
 TRAVERSING OR POSTPONING TRIAL, 50. 
 TREASURE TROVE, 
 
 concealing indictable, 194, n. 
 TREATING, 
 
 at elections, 449. 
 
 vol. i. — G6
 
 1042 Index. 
 
 TREES, 
 
 overhanging highway, 785. 
 
 TRESPASS, 
 
 not in general indictable, 204. 
 
 TRIAL, 
 
 postponing, 50. 
 
 right of accused to, 52. 
 
 continuing, 61. 
 
 judgment, 63, el seq. 
 
 costs of, 103. 
 
 proving, 384, el seq. 
 TRIAL AT BAR, 64, n. 
 TRICK, 
 
 conspiracy to cheat by, 505. 
 TUMULTUOUS PETITIONING, 581. 
 TURNPIKE. See Highway. 
 TURNPIKE TRUSTEES, 
 
 property of, how laid, 29. 
 
 U. 
 
 UNDER-SHERIFF. See Sheriff. 
 UNDUE INFLUENCE, 
 
 indictment, 448. 
 at elections, 449. 
 UNLAWFUL ASSEMBLY, 
 
 under revenue laws, 2S0, 290. 
 
 definition of, 569. 
 
 instances of what amounts to, 569. 
 
 difference between, and riot, 570. 
 
 persons witnessing prize-fight, 570. 
 
 night-poaching, 571. 
 
 meeting of Salvation Army, 571. 
 
 statutes concerning, 571 
 
 twelve persons or more not dispersing after being commanded by justice 
 of peace, &c, by proclamation. 571. 
 form of proclamation, 572, 573. 
 certain societies (United Englishmen, &c), suppressed, 574. 
 societies taking unlawful oaths, 574. 
 corresponding societies, 575. 
 
 meetings for the purpose of military exercise, 576. 
 
 enactments as to meetings on pretence of deliberating, Sec, on public 
 grievances (expired), 577. 
 
 meetings near Westminster Hall, 577. 
 societies taking unlawful oaths, &c, Spenceans, &c, 578. 
 societies electing committees, delegates, &c, 578. 
 Act not to extend to freemasons or others, 579. 
 debating societies, &c, 580. 
 
 neglect of duty by magistrate or commissioner, 580. 
 unlawful meeting in Trafalgar Square, 581. 
 tumultuous petitioning, 581. 
 evidence upon an indictment for a conspiracy in unlawfully assembling to 
 excite disaffection, 584. 
 
 declarations of the parties assembling, 584. 
 punishment, 585. 
 ' UNLAWFULLY AND INJURIOUSLY,' 
 
 meaning of these words in an indictment for offence against public 
 health, 273. 
 UNLAWFUL OATHS. See Oaths.
 
 Index. 1043 
 
 UNLAWFUL PURPOSE.^ 
 
 killing in prosecution of murder. 167. 
 UNWHOLESOME FOOD, 
 
 indictment for selling, 274. 
 URBAN AUTHORITY, 
 
 indicting, 834 n., 838 n. 
 UTTERING. See Coin. 
 
 VACCINATION ACT, 274. 
 VAGRANTS, 
 
 receiving, not indictable, 203. 
 VARIANCES, 
 
 in indictments for perjury, 334. 
 
 in allegations of competency of court, 344, et seq. 
 
 in allegations of materiality, 354, et seq. 
 in indictment for libel, 639, 64li. 
 amendment of. See Amendment. 
 VENUE, 
 counties. 
 
 offences committed on the boundaries of counties, 4. 
 
 alterations by the Boundary Act, 5. 
 
 offences committed during a journey or voyage, 5. 
 
 larceny on a journey by railway, 6. 
 
 detached parts of counties, 7. 
 
 transfer of outlying districts. 8. 
 
 surrounded by other counties, 8. 
 
 trial in adjoining county. 8. 
 
 counties of cities and towns, 8. 
 offences committed on the seas, 9. 
 
 places limited by commission, 9. 
 
 concurrent jurisdiction, 10. 
 
 high and low water mark, 10. 
 
 general rules, 11. 
 
 bay with headlands. 11. 
 
 inland sea, 11. 
 
 larceny at sea and carrying on shore, 12 
 
 offences at sea, where triable, 13. 
 
 murders and manslaughters, 13, 17. 
 
 Territorial "Waters Jurisdiction Act, 14. 
 
 trial of offences at sea under Consolidation Statutes. 15. 
 
 trial by Court of Quarter Sessions, 16. 
 
 what is a British ship, 17, 22, 23. 
 
 accessory within jurisdiction of Admiralty, 17. 
 
 Central Criminal Court, 16. 
 
 judges of assize, 18. 
 
 venue in indictments for offences at sea, 18. 
 
 sufficient to allege offence ' on the high seas,' 18. 
 
 what are ' high seas,' 23. 
 
 offences under Merchant Shipping Acts, 19. 
 
 jurisdiction in case of offences on board ship, 19. 
 
 or in any foreign port or harbour, 19. 
 
 proof that ship is a British ship, 22. 
 
 British ship when subject to laws of foreign state, 29. 
 trial in the colonies, 24. 
 
 offences committed by governors of colonies, 24. 
 venue in the margin, when sufficient, 25. 
 in coinage, 216. 
 in piracy, 26S. 
 in offences against Revenue Laws, 285.
 
 > 
 
 
 1044 Index. 
 
 VENUE — continued. 
 in perjury. : > ; j-- 
 in conspiracy, 528. 
 in challenging to right, 594. 
 in libel, 640. 
 in l>igamy, 665. 
 VERDICT, 
 
 amendment before, 61. 
 defects in indictment cured by, 38. 
 VESSEL. See Ship. 
 VESTRYMAN, 
 
 bribery of, 441. 
 VEXATIOUS INDICTMENTS ACTS, 2. 
 applies to perjury, 2. 
 subornation, 2. 
 conspiracy, 2. 
 false pretences, 2. 
 gambling, 2. 
 disorderly houses, 2. 
 indecent assault, 2. 
 offences under Debtors Act, 2. 
 libel, 2. 
 
 offences under Criminal Law Amendment Act, 3. 
 offences under Merchandise Marks Act, ; 5. 
 
 does not apply to attempts to obtain money by false pretences, 3. 
 no indictment without previous authorisation, 2. 
 justices to take recognisance to prosecute, 2. 
 in discretion of judge whether to allow prosecution, 3. 
 second indictment for the same offence, 3. 
 restriction of operation of former Act, 3. 
 30 & 41 Vict. c. 35, 3. 
 costs of the accused, 4. 
 VICTUALLERS. See Unwholesome Food. 
 VOTER'S LISTS, 
 
 overseers not indictable for wrongly making up, 202. 
 VOYAGE, 
 
 offences on. See Vexue. 
 
 W. 
 
 WAGER. See Gaming. 
 
 WAR, 
 
 court will take judicial notice of, 536. 
 aiding escape of prisoners of, 90S. 
 
 WARRANT, 
 
 perjury in proceedings on illegal, 301, et seq. 
 
 WATER, 
 
 nuisance from foul, 753. 
 WAY. See Highway. 
 
 WEAPON, 
 
 offensive, what shall be deemed, 288. 289, 951, 955. 
 
 WEIRS, 
 
 in rivers, when nuisances, &c, 848, et seq. 
 
 WELSH, 
 
 perjury in, 338. 
 marriages in, 680. 
 WHIPPING, 66, 83. 
 
 under 7 & 8 Geo. 4, c. 28, 70 n. 
 boys under twelve, 84.
 
 Index. 1045 
 
 WHIPPING — continued. 
 
 boys under fourteen, 84. 
 
 boys under sixteen, 84. 
 
 adults, 84. 
 
 incorrigible rogues, 81 n. 
 
 boy for perjury, Add. 
 
 under the Consolidation Acts, 83. 
 WIFE. See Feme Coveht. 
 
 WILL, 
 
 how proved in evidence, 383. 
 
 WINDMILL, 
 
 near highway, 789. 
 
 WITNESS. 
 
 postponement of trial on account of infection of, 53. 
 how paid for attendance, for prosecution, 90. 
 
 for defence, 107. 
 at coroner's inquest, 101. 
 extra expenses of, 102. 
 concealing to prevent evidence, 202 n. 
 number necessary for conviction of perjury, 368, et seq. 
 competency of, 376. 
 
 chairman of Quarter Sessions, 377. 
 
 county court judge, 377. 
 
 judge of high court, 377. 
 dissuading from giving evidence, 487. 
 intimidating, 487. 
 prosecutor a witness for the prosecution on indictments for nuisance to 
 
 highway, 819. 
 inhabitants of counties in prosecutions for not repairing bridges, 877. 
 
 WOMAN, 
 
 punishable for riot, 569. 
 
 WORDS, 
 
 will not make an affray, 588. 
 WORKMEN, 
 
 combinations of, 544, et seq. 
 WRESTLING, 
 
 assemblies for, not riotous, 554. 
 
 WRITS, 
 
 neglecting to obey, 257. * 
 neglecting to deliver election, 462. 
 
 YORKSHIRE REGISTRIES ACT. 
 
 perjury under, 298. 
 fraud by registrars, 422 
 
 END OF VOL. I.
 
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